Based on the article published on 24 March 2024,at https://en.minervacenter.huji.ac.il/october-7th-sexual-violence-crimes-against-humanity

On 4 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, establishing that there are reasonable grounds to believe that  conflict-related sexual violence occurred during the October 7th 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.

In this context, it is important to discuss acts of conflict-related sexual violence as crimes against humanity. 

According to Article 7(1)(g) of the Rome Statute, which applies to non-State armed groups, when rape is committed “as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”,[1] it constitutes crimes against humanity.

Even prior to the entry into force of the Rome Statute, international jurisdictions already recognized that rape could be an act that constitutes crimes against humanity, under international criminal law.[2]

Apart from the realm of international criminal law, the notion that rape can constitute a crime against humanity is also enshrined in public international law. In this regard, the United Nations Security Council has affirmed that rape and other forms of sexual violence can constitute a crime against humanity [3] and currently there are ongoing discussions at the General Assembly[4] and its Sixth Committee on a possible international convention on crimes against humanity.[5]

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.

 As background, the SRSG’s report was a culmination of a process that began immediately after October 7th. 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.

The visit of the SRSG ultimately took place between 29 January to 14 February, and its purpose was to gather information on sexual violence reportedly committed in the context of the attacks of 7 October 2023 and their aftermath. Unlike visits conducted by the SRSG in other places, 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.[6]

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. 

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.[7] 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.[8]

As stated in 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.”[9] 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.”[10] 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. As previously referenced, in accordance with 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.[11]   

Moreover, in the Elements of Crimes under the Rome Statute, it is clarified that the crime against humanity of rape is constituted by the invasion by a perpetrator of the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body; if that invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent; if the conduct was committed as part of a widespread or systematic attack directed against a civilian population; and if the perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

The report’s findings meet the elements that constitute rape as a crime against humanity under the Rome Statute. 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.” Clearly, then, the rape and the gang rape that took place on October 7th 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.