Arabic version
Global Legal Alliance for Palestine / Hiba Birat- March 4, 2024
Since October 7, the Israeli army has detained more than 7,000 Palestinian from Gaza Strip and the West Bank making the total number around 10,000 detainees. More than 200 of them were women and a close number were children. Women are mostly held in Israeli Demon prison in very humiliating and degrading situations.
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The UN Report
On February 19, 2024, UN Special Rapporteur on violence against women and girls, Reem Alsalem, together with the UN Special Rapporteur on the situation of human rights in the Palestinian Territories occupied since 1967, Francisca Albanese, and the UN working group on discrimination against women and girls chaired by Dorothy Tanck, issued a report that sounded a warning on the grave violations committed against Palestinian women and girls in the Gaza Strip and West Bank since October 7.
The report relied on other international reports addressing many violations committed on ground in Gaza as well as in Israeli prisons and detention centers. Such violations included assassination and extrajudicial killings of Palestinian females in what is known as “safe areas” or while seeking refuge to it although some of them were reportedly holding white pieces of cloth before they got killed by Israeli army together with their children and family members.
The report also addressed the grave violations in Israeli detentions were hundreds of Palestinian women from Gaza and the West Bank are held captives. Such violations ranged from deprivation of food, medicine, women hygiene products, and clothing all the way to torture and sexual violence.
Palestinian women in Israeli prisons have been severely beaten, harassed, humiliated, forced to take degrading positions while being photographed and their photos been later uploaded online. They were also stripped naked and searched by Israeli males, threaten with sexual assaults and actually at least two females from Gaza were raped.
Additionally, the report warned of forced disappearance and kidnapping of women and their children whom fate is unknown, citing an Israeli news report that uncovered the kidnapping of a Palestinian female infant into Israel after killing her whole family in Gaza.
The report concluded by considering these violations to be grave violations of international human rights law and international humanitarian law, and amount to serious crimes under international criminal law that could be prosecuted under Rome Statute. The UN experts called for a impartial, comprehensive and effective investigation into these allegations and that those responsible for the crimes should be held accountable while victims and their families get full redress and justice.
Legal Framework
In times of armed conflict, women suffer from complex violations, and their suffering is compounded due to the nature of their needs, not to mention other considerations such as motherhood, societal sensitivity, and considerations of honor and dignity. Accordingly, women share with men the general protection frameworks provided under international human rights law applied in times of peace and war, and international humanitarian law applied in times of war and armed conflict. For human rights law, women were given additional protection coded in special agreements, such as the Convention on the Elimination of All Forms of Racial Discrimination against Women (CEDAW), while in international humanitarian law, special provisions for protection were allocated in texts on different treaties and conventions, such as the Fourth Geneva Convention of 1949 on the protection of civilians in times of armed conflict.
International humanitarian law provides a rich framework for the protection of women in times of war and armed conflict. Its customary rules that must be applied in all cases, especially rules 93, 94, 134, and 156, criminalize sexual violence in all its forms and consider it a war crime. As for codified international law, it also devoted its instruments to protecting women, mainly the Fourth Geneva Convention for the Protection of Civilians in Times of Armed Conflicts1949 which prohibited sexual violence under Article 27 (2) that criminalized attacks on honor, especially rape, harassment, and forced prostitution. In addition, the First Protocol to the Geneva Conventions of 1977 regarding international armed conflicts emphasized such prohibition in Paragraph 2 of Article 75 and Paragraph 1 of Article 76 specifically criminalizing various sexual assaults.
Sexual violence, especially rape, is considered a war crime even if it happened once, it is not necessary for sexual violence to take place systematically or on a large scale for the perpetrators to be prosecuted for war crimes. However, when these practices become wide spread and systematic against civilians they give rise to crimes against humanity.
Even when sexual violence is not mentioned in name, it amounts to torture and inhuman treatment that are usually prohibited and prosecuted as war crimes and crimes against humanity in times of conflict. It is also incriminated under national laws and perpetrators should be prosecuted in their national courts which should not affect their international prosecution unless the principal of last resort applies.
Most particularly, in the Palestinian context, sexual violence is one of the means of committing the crime of genocide as defined in the Convention on the Prevention and Punishment of the Crime of Genocide 1948. Sexual violence here can be seen as an act committed with the intent to destroy in whole or in part a national, ethnic, racial, or religious group and that cause in particular serious bodily and mental harm and impose conditions calculated to destroy the group and its capacity to reproduce.
In its resolutions 1325 of 2000 and 1820 of 2008, the Security Council made it clear that sexual violence is considered a tactic of warfare whenever it is used to humiliate, control, spread terror, and force civilians or ethnic groups to migrate. It emphasized in the same resolution that sexual violence in its various forms may amount to war crimes, crimes against humanity, and the crime of Genocide, as included in the Rome Statute that established the International Criminal Court in 1998. Such framing was provided in Articles 7 on crimes against humanity and 8 on war crimes of the Rome Statute. Similarly, did the charters establishing the international tribunals for the former Yugoslavia (Article 5), Rwanda (Articles 3 and 4), and Sierra Leone (Article 2). International Criminal Tribunals of Former Yugoslavia and Rwanda (ICTY, ICTR) prosecuted sexual assault as genocide (Akayesu case-Rwanda-raping Tutsi women), crime against humanity (Akayesu case), torture (Celebici case- former Yugoslavia- raping Bosnian women), war crime (Furundzija case- former Yugoslavia- assisting and encouraging the rape of Bosnian women).
Sexual assaults as a tactic of war in armed conflicts receive special attention in the United Nations. Since the beginning of the current millennium, the Security Council has adopted more than ten resolutions related to the issue of protecting women in times of war and insecurity. The General Assembly also issues an annual report in particular, listing the parties involved in violations and international efforts to implement resolutions against violations and monitor the extent of the various parties’ commitment to implementing those resolutions. In addition to the special Rapporteurs and various UN missions that devote their efforts to investigating the allegations and submitting reports and recommendations regarding them in preparation for adopting UN resolutions, which then seek to find an implementation mechanism with the local authorities and relevant parties.
In 2007, the United Nations established its UN Action network, which consists of 25 international bodies headed by the Special Representative of the Secretary-General on Sexual Violence in Times of Conflict, and whose membership is occupied by United Nations agencies and offices, including the Office of the High Commissioner for Human Rights, the Woman’s Organization, UNICEF, the World Health Organization, and the United Nations Population Fund, the International Labor Organization and others. This network is mandated with policy-making, guidance, training, awareness-raising, and cooperation with decision-makers and national official and civil bodies in order to implement United Nations resolutions on preventing and punishing sexual violence in times of conflict.
By attacking Palestinian women, whether by killing them, capturing them, or committing physical, sexual, and metal violations against them, Israel has violated the text and spirit of several relevant international agreements that guarantee women’s right to life, dignity, freedom, and security on the one hand, and their right to be safe from torture and inhuman and cruel treatment, including sexual assault, on the other hand. The gravity of these violations means that Israel is committing, in accordance with the Rome Statute, war crimes and crimes against humanity. They also add to the file submitted before the International Court of Justice regarding Israel’s commission of the crime of genocide, the most important determinants of which are individuals’ murder, physical and psychological harm, and hardening life conditions for the purpose of partially or completely destroying an ethnic, national or religious group. .
Position of the international community
Although the UN experts’ warning adds more atrocities to the already bloated Israeli record, the significant international failure to investigate Israeli crimes in the Gaza Strip continues. Pramila Patten, the UN Special Envoy on Sexual Violence, is preparing to launch her report on the alleged sexual violations by Hamas fighters on October 7, which a representative of rape organizations in Israel claimed was a widespread and intentional practice during the attack, although not a single certified piece of evidence has been presented, and the testimonies that Israel claimed exist have not been documented except for limited, and conflicting testimonies that have been discredited in official and international forums, Israel and its allies are still struggling to prove these allegations, while Patten has not yet indicated her intention to include in her report cases of sexual assault on Palestinian female prisoners in Israeli prisons.
The Prosecutor of the International Criminal Court Karim Khan is still reluctant to mobilize the case brought before the court since 2015, although several countries have recently put pressure to open a criminal investigation into the crimes committed in the Palestinian territories since October 7, including South Africa, Mexico, Chile, Belgium, Bangladesh, and others. Now it is highly doubtful that this warning, which includes war crimes, crimes against humanity, and clear elements of the crime of genocide falling within the jurisdiction of the Court, will change anything in the current inaction scene in the ICC.
For its part, the failure of the United Nations is clear whether in stopping the ongoing brutal military operation, or in investigating the successive and well-documented Israeli violations since October7. The Security Council failed, for four months, to take decisive decisions to condemn the Israeli aggression and oblige Israel to stop its military operation, enter urgent humanitarian aid, and begin reconstruction, while the General Assembly was also unable to press in the same direction due to the intransigent American position that openly and unconditionally supports the Israeli aggression. As for the International Court of Justice, the provisional measures it ordered in response to the lawsuit brought before it by South Africa regarding Israel committing the crime of genocide at the end of last December were weak and lacked decisiveness, which allowed the Israeli war machine to continue its work in full swing. It is also unclear whether the recent warning about sexual violations will resonate and change anything in the helpless position of the UN institutions.
On the top of the previous list comes the clear failure of the Red Cross to carry out its responsibilities towards the Palestinian prisoners. The ICRC mission of visiting prisoners and verifying the conditions of their detention heads the mandate entrusted to it. While the organization devotes great space and effort to following up on the issue of Israeli detainees in the Gaza Strip, it hardly lifts a finger on the issue of Palestinian prisoners and the grave violations they have been subjected to since October 7, that amounted to the direct execution of eleven prisoners so far, not to mention the doubling of cases of arbitrary detention, enforced disappearance, administrative detention, torture and ill-treatment, and now with this warning on sexual assaults including rape, without the Red Cross breaking its silence and carrying out its responsibilities.
Now What? (Action Plan)
- Call for the HRC to form an investigation mission: The special Rapporteur who issued this warning fall under the umbrella of the “Special Procedures” of the United Nations Human Rights Council, which includes independent experts who contribute to the investigation and follow-up procedures falling under the Council’s tasks. The latter appoints them either according to the geographical distribution of countries or according to substantive issues. It is worth noting that these Experts are not considered official employees of the United Nations and do not receive financial compensation for their work. Rather, they are independent volunteers and work in their personal capacities. Despite this, the serious allegations included in the statement they launched pave the way for the formation of investigation and fact-finding committees affiliated with the Human Rights Council, which are responsible for collecting and verifying information and interviewing victims and witnesses before submitting their reports to UN institutions so that resolutions or recommendations can be taken regarding them. These reports also gain special importance as international courts rely on their content during investigations and trial procedures, as the International Court of Justice and the International Criminal Court usually do, because of the legal value of these reports and confidence in their objectivity and impartiality. Such call can be made by partnering with organizations that have credentials at the ECOSCO to present an oral or written statement on the issue and present at one or more of the sessions of the council which regularly take place during February, June and September of every year.
- Call for the UN Independent Commission of Inquiry on the Palestinian territories that was formed in 2021 to take action: the commission has not carried out its work until now in the Gaza Strip, as Israel refuses to cooperate with UN bodies.
- Call on UN envoys and special Rapporteurs concerned with substantive issues, such as extrajudicial killings, sexual violence, torture and other forms of cruel, inhuman and degrading treatment, to carry out their work and immediately and directly investigate ongoing Israeli violations and submit reports on them in order to pave the way for the formation of effective investigation committees whose reports will function as a basis for judicial moves for accountability in international courts.
- Call on Karim Khan to open a criminal investigation into alleged sexual assaults against Palestinian women since October 7 in preparation for the ICC to prosecute them as war crimes, crimes against humanity and the crime of genocide.
- Contact the South Africa legal team to add sexual violence to their case before the ICJ as rape and other forms of sexual violence cause both physical and mental harm and are able to bring destruction to the group more than collective killings which make them qualify as elements of the crime of genocide.
- Call on the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), which is a committee of United Nations experts that monitors and follows up on countries’ implementation of their obligations under the CEDAW Agreement and was formed under Article 17 of the convention. This committee has the authority to request state parties, including Israel, to report on their implementation of the convention. The committee, in turn, issues an annual report on states’ compliance with the provisions of the convention and submits it to the General Assembly through its Social and Economic Council. The committee also presents its recommendations and directives to state parties.
- Address the UN Working Group on the Issue of Arbitrary Detention (WGAD), affiliated with the Human Rights Council, which specializes in examining complaints related to arbitrary detention and failure to observe the rules of legal protection and fair trial in investigation and detention centers. The group has the authority to investigate, conduct fact-finding visits to relevant countries and receive information from individuals and official and civil institutions. It can also issue recommendations and cooperate with governments to implement relevant international rules of law. The group must submit an annual report to the Human Rights Council in particular.
- Issue a report on the matter that details facts and legal framework and share it with both national and international feminist organizations, human rights organizations, health organizations and other relevant organizations and ask them to take a stand, issue a statement and address the matter publicly.
- Conduct awareness raising webinars and training sessions of the matter especially to college students, UN workers, human rights activists, and influencers.
- Create a social media campaign that’s includes educational multimedia materials (live stream, posts, photo and video designs, X threads and others.
- Organize protest stands in front of stream media outlets, demand them to cover the matter rather than focusing on baseless accusations of the resistance on committing sexual crimes on October 7th. Outline their conspiracy, propaganda and double standards.
- Reach out to BDS to create a list of organizations that support and finance Israeli military prisons and system and call on boycotting them for their complicity in sexual violence against Palestinian women.
- Collaborate with litigation groups to bring lawsuits within national judicial systems under the principal of Universal Jurisdiction; as sexual violence constitutes a grave breach of the Geneva Conventions.
These movements are gaining increasing importance by moving stagnant waters and mobilizing global support for the Palestinian cause, in addition to besieging the occupation and exposing it internationally. Sexual assaults are also sensitive to observers abroad and are a complex moral crime that Western as well as Arab peoples deplore. This is why major Western media channels with colonial agendas have sought to spread accusations that the Palestinian resistance committed these atrocities, which was an important element in demonizing the Palestinians and their resistance, inciting the Western observer against the entire cause, and justifying the criminal Israeli reaction in particular. This card is still being used to this day in the media and official forums to whitewash Israel’s actions and divert attention from its numerous crimes.
