In the aftermath of the October 7th military drone attack by Hamas, shocking reports of alleged sexual violence have emerged, shedding light on the complexities faced by investigators.
The Israeli military swiftly responded by setting up a temporary morgue at the Shura defence base in central Israel to handle the 1,200 casualties, among whom were at least 300 women.
Reservist Shari Mendes, who worked at the base, provided a grim account, stating, “Sometimes we had people who – we just had a torso, okay – or they were very decomposed or they were mutilated. I saw very bloody genitals on women.”
Mendes, along with others, worked diligently to handle the bodies with respect and dignity, adhering to Jewish burial law, which necessitated prompt burials.
Israeli police are now investigating potential sexual crimes related to the attack, and their goal is to prosecute every suspect in custody.
However, the challenges facing the investigation are significant, including the burial of women's clothes before police investigators could examine them due to cultural and religious practices.
The Israeli military spokesperson emphasized that their initial priority in the mass casualty event was to identify the deceased promptly so families could be informed.
The attack, labelled as the bloodiest in Israel's 75-year history by the justice ministry, has prompted a thorough inquiry into allegations of torture, physical abuse, rape, burning alive, and dismemberment.
Hamas, in response, vehemently denies the allegations of sexual assault or mutilation by members of its armed wing, the Izz el-Deen al-Qassam Brigades. Taher al-Nono, the media adviser to the head of the political bureau of Hamas, has called for “a serious and impartial international investigation into the matter.”
The United Nations Commission of Inquiry, tasked with investigating war crimes on both sides of the Israel-Hamas conflict, will probe the allegations of sexual violence by Hamas.
This move has sparked criticism from Israel, which accuses the commission of bias and has declared non-cooperation with the investigation.
In Israeli criminal law, sexual violence encompasses a range of offences, including rape, indecent acts, harassment, and sexually demeaning actions. Authorities face the challenge that many victims are either deceased or traumatized.
Orit Soliciano, head of Israel's Association of Rape Crisis Centres, noted that an estimated “few dozen” surviving victims and witnesses have sought help, emphasizing the potential for delayed reporting due to trauma.
Despite obstacles, Commander Shelly Harush revealed on November 27th that they have gathered over 1,500 testimonies on atrocities, including sexual violence, rape, and genital mutilation. The evidence includes graphic testimonies from survivors, security forces, first responders, and families of victims.
However, forensic challenges arise due to the state of decomposition of some bodies, making it difficult to prove sexual assault forensically.
“Maybe if we had checked them in the first 24 hours (that would be possible),” said Chen Kugel, Head of the Israel National Center of Forensic Medicine.
As investigations unfold, legal experts anticipate potential challenges in prosecuting specific defendants for harming specific victims, especially given the constraints imposed by the circumstances of the attack.
“In a criminal case, a specific defendant is convicted of harming a specific victim,” said Dana Pugach, a law professor at Ono Academic College.
If prosecutions in Israel prove challenging, the International Criminal Court (ICC) in The Hague could become involved.
The ICC has asserted jurisdiction over atrocity crimes committed by Palestinians on Israeli territory. Israeli lawyers are preparing evidence for potential ICC proceedings, recognizing the unique legal challenges involved.
