Reports have uncovered alarming evidence of rampant sexual violence and torture of Palestinian prisoners by Israeli forces.

In August, the Israeli human rights group B’Tselem released a comprehensive report with testimonies from 55 Palestinians, revealing widespread torture, sexual violence, and inhumane treatment of Palestinian detainees[1]. The same month, surveillance footage aired by Israel’s Channel 12 revealed Israeli soldiers raping a Palestinian prisoner at the Sde Teiman desert camp[2], prompted the arrests of nine soldiers and an investigation into “suspected substantial abuse of a detainee”[3].

These disturbing details are consistent with previous accounts of similar gravity. In February, Israeli human rights organizations submitted a joint report to the UN Special Rapporteur on Torture, documenting extensive and systemic abuse by Israel Prison Service (IPS) officers against Palestinian prisoners[4]. The submission detailed verified cases of severe physical abuse and sexual harassment of both male and female detainees across seven different prisons and detention facilities[5]. A CNN report published in May also highlighted allegations of torture and sexual violence by Israeli soldiers at the Sde Teiman desert camp, where Palestinians detained during Israel’s invasion of Gaza were being held[6].

Despite mounting evidence, these allegations of sexual violence against Israeli forces remain unaddressed by international justice mechanisms. In May 2024, the International Criminal Court’s (ICC) Prosecutor Karim Khan announced that he was filing applications for warrants of arrest in the Situation in the State of Palestine[7]. While the Prosecutor has applied for arrest warrants against Hamas leaders that include charges of rape and sexual violence, similar charges are conspicuously absent in cases against Israeli officials.

It is essential to recognize these acts as forms of sexual violence within the framework of the Rome Statute to ensure accountability and justice for survivors. Without this recognition, the Court risks neglecting a fundamental aspect of the abuses suffered by Palestinian victims and failing to deliver a comprehensive and just outcome.

If the ICC is committed to delivering meaningful justice, it must broaden its scope and adopt a survivor-centered approach that accurately captures the lived realities of Palestinian victims and holds those responsible for sexual violence fully to account.

The Hague Principles on Sexual Violence offers a comprehensive framework that enables international justice mechanisms to more accurately identify, categorize, and address the broad spectrum of sexual violence. Incorporating these principles into the ongoing ICC investigation will ensure that any charges brought forward truly reflect survivors’ realities and hold perpetrators fully accountable.

How the Rome Statute Falls Short

The current definition of sexual violence under the Rome Statute falls short of capturing the full scope of abuses in detention settings. The Rome Statute explicitly recognizes various forms of sexual violence as war crimes[8] and crimes against humanity[9], but its catch-all phrase “any other form of sexual violence” remains vague.

The Court’s Elements of Crimes defines “any other form of sexual violence” broadly as any act of a sexual nature carried out by force, threat, or coercion. However, this definition lacks a clear definition of what makes violence itself sexual, leaving many forms of abuse unaddressed, particularly in the context of torture and psychological oppression.

The Hague Principles on Sexual Violence

The Hague Principles on Sexual Violence, developed by Women’s Initiatives for Gender Justice, provide a framework to allow for more inclusive, survivor-centered, and culturally sensitive responses to sexual violence crimes beyond traditional definitions, recognizing a broader spectrum of harmful acts.

To give an example of the nuances involved, the Principles emphasize that whether an act is considered sexual in nature depends on how it is perceived by the victim, the perpetrator, and their communities, allowing for an act to be classified as sexual violence even without physical contact or intent for sexual gratification.

Broad Spectrum of Sexual Violence in Israeli Prisons

In contexts like Palestine, where allegations of sexual violence are suspected to be part of broader patterns of abuse, The Hague Principles can serve as a vital tool for ensuring that such acts are properly identified.

The B’Tselem report and joint submission of the Israeli human rights organizations include testimonies that document a range of acts that include explicit forms of sexual abuse such as forced nudity[10], forced penetration using objects[11], verbal abuse using sexual slurs[12], threats of sexual violence[13], and beatings directed at the genitalia[14].

However, the report also describes other acts that, while not explicitly labelled as sexual violence, align with the broader understanding provided by the Civil Society Declaration. These include invasive body searches[15], sexual humiliation[16], restriction of access to menstrual hygiene products[17], and unwelcome sexual conduct in the form of drawing male genitalia on the walls of the prison cell[18].

The Civil Society Declaration also recognizes culturally specific acts as potential sexual violence[19]. For instance, it notes that forcibly removing headwear in cultures where this has sexual implications can be considered sexual violence when done without genuine consent.

This is particularly relevant to testimony in the B’Tselem report where female prisoners were forced to remove their headscarves, even when one of them explicitly refused[20]. This act was further compounded by a soldier photographing her without her headscarf, adding an element of permanence to the violation[21].

While these instances may not meet the threshold for sexual violence as defined under the Rome Statute, they may serve as crucial indicia of a broader, systematic practice.

ICC’s Office of the Prosecutor: Double Standards in Practice?

In recent years, the Office of the Prosecutor (OTP) has made significant developments in prosecuting and investigating sexual and gender-based crimes. Notably, the appointment of gender experts[22] as special advisers has ensured that investigations and prosecutions are informed by expertise and an understanding of the complexities of gender-based violence (GBV). The OTP’s updated policy on gender-based crimes and persecution is another significant step, aimed at strengthening the effectiveness and depth of its approach to these crimes.

These efforts have translated into more robust charging in recent cases. For instance, in the case of The Prosecutor v. Dominic Ongwen, the ICC successfully included charges of sexual and gender-based crimes, setting important precedents for international criminal justice[23].

However, despite these advancements, we are not witnessing the same commitment to applying these policies in the context of Palestine—a glaring omission given the gravity of the allegations.

What makes this particularly concerning is the OTP’s recognition of the Hague Principles in its updated policy on gender-based crimes. These principles, which were referred to in the policy to define sexual violence[24], have not been fully applied to the investigation in Palestine, despite their clear relevance.

The arrest warrants are still being reviewed and considered by the Pre-Trial Chamber, and the investigation by the Prosecutor is ongoing. However, the situation urgently calls for a more thorough investigation on both sides, particularly concerning the allegations presented within this article.

While reports of sexual violence committed by Hamas may have been more prominent in the aftermath of the October 7, 2024 attack, it is essential to consider that sexual crimes may be committed by both parties involved.
The ICC has a responsibility to investigate and address allegations impartially, regardless of the parties involved, to ensure justice and accountability for all survivors.

Recognizing Sexual Violence as a Tool of Oppression

Understanding sexual violence beyond traditional definitions enables us to capture the full picture of how Israeli forces use sexual violence as a tool of oppression to subjugate Palestinians.
Sexual violence is compounded by a broader culture that tolerates, and at times even justifies such acts. Generations of Palestinians have endured widespread arbitrary detention, where physical, psychological, and sexual abuse are distressingly common. Sexual violence has been weaponized against Palestinian women —both historically during the 1948 Nakba and in contemporary contexts—as a method of displacement and ‘cultural erasure’[25].

But sexual violence is not experienced only by women. Israeli forces use sexual violence to break Palestinian men, with the specific intent to humiliate and emasculate them within the context of a patriarchal society.

As detailed in a study on “Sexual torture of Palestinian men by Israeli authorities,” these acts are designed to exploit cultural norms and gender expectations, inflicting trauma not only on the individual but also on the broader community[26].

Understanding these violations within their historical and cultural context reveals a continuum of violence that perpetuates trauma and undermines the prospects for peace and justice in the region.

Going Forward

The reports of systematic use of sexual violence by Israeli forces against Palestinian detainees is not only a grave violation of human rights but also its function as a deliberate tool of oppression and control. The current legal framework under the Rome Statute falls short of capturing the broader spectrum of abuses—leaving many survivors without justice.

The Hague Principles on Sexual Violence provide the ICC with the opportunity to correct this oversight by broadening the definition of sexual violence to include culturally specific and non-physical forms of abuse, such as forced nudity, invasive body searches, and sexual humiliation.

Integrating these principles into ICC investigations would allow for recognition and, where substantiated, prosecution of the full scope of the sexual violence perpetrated by Israel in this context. This would not only bring justice to survivors but also send a strong message that no form of abuse will be overlooked. While there has been significant effort by the ICC to fill this shortcoming, including by referencing the guidelines provided by the Hague Principles on Sexual Violence, these efforts will continue to fall short unless they are applied comprehensively and impartially across all investigations.

By adopting these principles in its investigations, the ICC can ensure that the full range of sexual violence used to subjugate Palestinians is recognized and prosecuted. This would not only bring justice to survivors but also send a strong message that no form of abuse will be overlooked. While there has been significant effort by the ICC to fill this shortcoming, including by referencing the guidelines provided by the Hague Principles on Sexual Violence, these efforts will continue to fall short unless they are applied comprehensively and impartially across all investigations.

We strongly urge the ICC to seize this opportunity to apply innovative legal approaches, drawing inspiration from the International Criminal Law Guidelines on Sexual Violence and extend its investigation to include sexual crimes perpetrated by individuals in positions of power within Israel.

If necessary, the issuance of new arrest warrants should also be considered to ensure comprehensive accountability for all acts of sexual violence.

The time is now for the ICC to act, taking a survivor-centered approach that fully captures the lived realities of Palestinians who have endured these horrors.

By doing so, the ICC has the opportunity to set a powerful precedent in international law, ensuring that sexual violence in all its forms is acknowledged and that those responsible are held accountable.

Footnotes

[1] B’Tselem. Welcome to Hell: Testimonies of Torture at Israeli Detention Centers. August 2024. Accessed 26 August 2024. https://www.btselem.org/sites/default/files/publications/202408_welcome_to_hell_eng.pdf.

[2] Ali, F. “Israeli Media Reports Alleged Sexual Abuse of Palestinian Detainee.” The Guardian.  August 8, 2024. Accessed 26 August 2024 https://www.theguardian.com/world/video/2024/aug/08/israeli-media-alleged-sexual-abuse-palestinian-detainee-video.

[3] Ibid.

[4] Adalah, HaMoked, Physicians for Human Rights Israel, and the Public Committee Against Torture in Israel. Submission to the Special Rapporteur on Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. February 15, 2024. Accessed 17 September 2024. https://www.omct.org/site-resources/files/Submission_SR_Torture_final-15.2.24.pdf.

[5] Ibid, p. 1-2.

[6] “Whistleblowers Reveal Abuse at Israeli Detention Facility.” CNN, May 10, 2024.  Accessed 26 August 2024. https://edition.cnn.com/2024/05/10/middleeast/israel-sde-teiman-detention-whistleblowers-intl-cmd/index.html.

[7] “Statement by ICC Prosecutor Karim A.A. Khan KC on Applications for Arrest Warrants in the Situation of the State of Palestine.” International Criminal Court. Accessed 27 August 2024. https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-kc-applications-arr-est-warrants-situation-state.

[8] Article 7(1)(g) of the Statute lists “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” as crimes against humanity when committed as part of a widespread or systematic attack against a civilian population.

[9] Article 8(2)(b)(xxii) and Article 8(2)(e)(vi) define war crimes to include “rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions”. These acts must be committed as part of a plan or policy or as part of a large-scale commission of such crimes to be understood as a war crime.

[10] B’Tselem. “Welcome to Hell: Testimony of A.H.” August 2024. Accessed 10 September 2024. https://www.btselem.org/publications/202408_welcome_to_hell/testimony_of_a_h; Adalah et al., “Submission to the UN Special Rapporteur on Torture.” p. 7

[11] B’Tselem. “Welcome to Hell: Testimony of A.H.”

[12] Ibid.

[13] Adalah et al., “Submission to the UN Special Rapporteur on Torture.” p. 7-8

[14] Adalah et al., “Submission to the UN Special Rapporteur on Torture.” p. 7-8; B’Tselem. “Testimony of A.H. on Abuse in Israeli Detention Facilities.”

[15] B’Tselem. “Welcome to Hell: Testimony of I.A.” August 2024. Accessed 10 September 2024.https://www.btselem.org/publications/202408_welcome_to_hell/testimony_of_i_a; B’Tselem. “Welcome to Hell: Testimony of Nadiah al Hilu.” August 2024. Accessed 10 September 2024. https://www.btselem.org/publications/202408_welcome_to_hell/testimony_of_nadiah_al_hilu

[16] B’Tselem. “Welcome to Hell: Testimony of A.H.”; B’Tselem. “Welcome to Hell: Testimony of I.A.”

[17] B’Tselem. “Welcome to Hell: Testimony of I.A.”; B’Tselem. “Welcome to Hell: Testimony of Nadiah al Hilu.”

[18] B’Tselem. “Welcome to Hell: Testimony of A.H.”

[19] Women’s Initiatives for Gender Justice. The Hague Principles on Sexual Violence. p.18.

[20] B’Tselem. “Welcome to Hell: Testimony of A.D.” August 2024. Accessed 10 September 2024. https://www.btselem.org/publications/202408_welcome_to_hell/testimony_of_a_d

[21] Ibid.

[22] Prof. Lisa Davis, Patricia V Sellers and Prof. Valerie Oosterveld, just to name a few. Their bios can be found in the ICC’s webpage on Special Advisers to the OTP: https://www.icc-cpi.int/about/otp/special-advisers-to-the-prosecutor.

[23] Read International Criminal Court. The Prosecutor v. Dominic Ongwen: Trial Judgment Summary – ICC-02/04-01/15. January 2021. Available at: https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2021_01026.PDF.Accessed September 20, 2024.

[24] See Policy on the Crime of Gender Persecution, International Criminal Court, Office of the Prosecutor, December 2023, p. 13. Available at: https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf. Accessed 9 October 2024.

[25] Sharif, Lila (Palestinian Feminist Collective). “Innovative Approaches: Collective Voices and Decolonizing Strategies.” Reproductive Violence in International Criminal Law Conference. Organized by Women’s Initiatives for Gender Justice, in conjunction with the International Institute of Social Studies, Legal Mobilization Platform, University of Sydney Centre for International Law, Strategic Litigation Project, and Global Justice Center. June 11, 2024. Video, 3:44:00.

[26] Matar, K. “Sexual Torture of Palestinian Men by Israeli Authorities.” Reproductive Health Matters 23, no. 46 (November 2015): 71–84. https://doi.org/10.1016/j.rhm.2015.11.019. p. 78-79