Building the case: Proving and prosecuting Hamas terrorists for 'systematic' sexual violence on Oct 7

The United Nations has described sexual violence as a weapon of war as “one of history’s greatest silences and one of today’s most extreme atrocities.” Yet that silence continues today, as the systematic use of sexual violence against Israelis by Hamas is studiously ignored.

Even the most anti-Israel activists struggle to justify rape as resistance, so many simply deny that it ever happened.

Now the Dinah Project Report, the most comprehensive cataloging of the Conflict-Related Sexual Violence (CRSV) perpetrated against Israel since the morning of Oct. 7, 2023, makes it increasingly impossible to ignore. 

Margot Wallström, UN Secretary-General’s Special Representative on Sexual Violence in Conflict, stated that rather than being the actions of individual bad actors, rape has been used as a “deliberate tactic of warfare,” emphasizing that it “displaces, terrorizes and destroys individuals, families and entire communities.”

In the last century, sexual violence was used as a weapon in more than 20 conflicts – for example, by Japanese and Russian forces during World War II, and later in the 1990s as a tool of ethnic cleansing in the former Yugoslavia and genocide in Rwanda.

Legal provision has long existed to deal with CRSV, such as Article 27 of the Geneva Convention for the “Protection of Civilian Persons in Time of War (1949)” and the 1993 UN declaration that systematic rape and military sexual slavery were crimes against humanity. Later in 2008 the UN Security Council adopted a further resolution affirming that such acts can constitute “war crimes, crimes against humanity or a constitutive act with respect to genocide.”

Just one month after the Hamas attack on Oct. 7, the Under-Secretary-General of the UN, Special Representative on Sexual Violence in Conflict, Ms. Pramila Patten, was invited to Israel to “first-handedly hear and see the testimonies and evidence of these heinous acts [of CRSV].” 

She came the following February with a team of nine highly qualified experts from various UN entities, including staff from the office of the SRSG-SC and specialists trained in safe and ethical interviewing of survivors and witnesses of sexual violence crimes; a forensic pathologist; and a digital and open-source information analyst. The record of their visit was published on March 4, 2024, marking the first report on the sexual violence of Oct. 7 by a formal UN entity. Yet despite this thorough review, claims of CRSV against Israel have been constantly belittled, ignored, and even denied.

With decades of experience in criminal law and sexual violence cases, the experts behind the Dinah report sought to collate, organize and analyze the data from Israel’s war with Hamas as thoroughly as possible, in the most comprehensive and detailed record of the sexual crimes committed in order to bring the perpetrators to justice.

Cataloguing their sources, they listed information provided by first-hand survivors; by first-hand eyewitnesses and earwitnesses in real time; Res gestae accounts provided by witnesses including returnees from captivity; information provided by first responders; healthcare workers and therapists; and workers at the Shura military base, which served as the morgue. “No source was accepted at face value,” the report clarifies.

Every piece of evidence was "first scrutinized to assess its relevance to our subject matter and then analyzed for its content and evidentiary value."

According to the report, each item was documented based on the following criteria: "location (site of the incident) and time; number and gender of victims involved in a particular incident; typology of the acts perpetrated; identity of the source; type of evidence; reference; detailed content of the account; and other relevant comments. All the catalogued items were then incorporated into one large matrix.”

They found multiple cases of the same atrocities, indicating the systematic and premeditated nature of the attack. Numerous accounts of rape were documented, several describing victims found bound with their hands tied behind their backs – often to trees or structures. Most were executed following the assault and in several cases gang rape continued even after the victim was dead. Many corpses, both male and female, were found naked from the waist down with legs splayed. Several had been mutilated, burned or shot in their genital areas, some with objects forced into their bodies. The report also included testimonies of threats of rape and sexual humiliation as well as rape and sexual violence from the hostages held in Gaza.

“The challenge in this matter is two-fold, legal and strategic,” the Dinah report states. “In view of the wave of denial emanating from the international community, which combines with the legal complexities that characterize this event, it is of the utmost importance to acknowledge and understand the nature of these heinous sexual crimes and to bring their perpetrators to justice, in order to ensure accountability and responsibility and prevent impunity,” the authors assert.

The project points to the ideological foundation of Hamas based in its 1988 Charter, which is a toxic combination of radical Islamist doctrine with elements of traditional European antisemitism and Nazi propaganda, blaming the Jews for all the evils in the world.

“This ideology, which views the struggle as an existential and ideological battle against Jews, Zionism, and the State of Israel, thus serves as justification for acts of terrorism against Israeli civilians and Jews everywhere,” the report stated. Additionally, instructions found within Gaza saying that “no difference should be made between men, women, elderly, or children” and [also found were] religious rulings made to permit sexual crimes against hostages. 

As a result, the report recommended that joint responsibility for the CRSV should be applied to all those who took part in the Oct. 7 attack, stating that an adapted legal framework is necessary. “When crimes are committed as part of a coordinated mass assault with the explicit goal of genocide it must be recognized that knowingly joining the attack is in and of itself sufficient to impose criminal liability.”

“The conclusion is that individuals who after being indoctrinated choose to participate in violent, organized, and brutal assaults aimed at terrorizing a civilian population knowingly take part in an operation in which acts of sexual violence are neither incidental nor isolated; they are in fact an inherent and foreseeable part of the terror attack.”

By incriminating all those who knowingly took part in the attack in this way, the Dinah Project report recommends transitioning from a victim-centered evidentiary model to a broader approach, relying less on the voices of the male and female victims, who have been to a large degree silenced by death, trauma, and shame, and more on the culpability of the attackers.