ICC Has No Evidence for 7 October Rapes, Documents Indicate

Ali Abunimah 

21 May 2024

Close-up portrait of Karim Khan with hand on chin

ICC chief prosecutor Karim Khan’s charges against Palestinian leaders echo Israeli propaganda.   Sebastian BarrosZUMA Press

There are many vexing aspects to Monday’s announcement by International Criminal Court chief prosecutor Karim Khan that he is seeking arrest warrants for Israeli Prime Minister Benjamin Netanyahu, defense minister Yoav Gallant and three leaders of the Palestinian resistance movement Hamas.

That he should charge the leaders of a legitimate resistance against military occupation and equate them with the leaders of a criminal regime that is perpetrating genocide is questionable enough – one theme explored in an excellent commentary on the indictments by Justin Podur on his YouTube channel The Anti-Empire Project.

It is particularly bizarre that Khan would charge Ismail Haniyeh, the Hamas politburo chief and a civilian political leader who almost certainly had no role whatsoever in planning the 7 October resistance operation.

That can only be aimed at delegitimizing Hamas in line with Western political imperatives. It may well hamper Haniyeh’s constructive role as an interlocutor and mediator in efforts to negotiate a ceasefire, something Hamas has been trying to do in the face of consistent US-backed Israeli rejectionism.

But that Khan has charged Haniyeh, along with Hamas’ Gaza leader Yayha Sinwar and its military commander Muhammad Deif with sexual violence and rape is absurd.

Although it is only an accusation, the fact that the ICC prosecutor seeks formal charges adds weight and credibility to the claims, and will thus feed the notion that there is some factual basis to Israel’s entirely debunked atrocity propaganda about Hamas using rape and sexual violence as a weapon of war.

What does Khan say?

In fact, both Khan’s announcement and a report by an advisory panel of international law experts convened by the chief prosecutor indicate that Khan found no evidence of such attacks on 7 October that he could base any charges on.

Khan’s charges against Hamas leaders include “Rape and other acts of sexual violence as crimes against humanity, contrary to article 7(1)(g) [of the ICC’s founding Rome State], and also as war crimes pursuant to article 8(2)(e)(vi) in the context of captivity.”

Pay close attention to the words I’ve emphasized throughout the texts I’m quoting.

Later in his announcement, Khan asserts that “there are reasonable grounds to believe that hostages taken from Israel have been kept in inhumane conditions, and that some have been subject to sexual violence, including rape, while being held in captivity. We have reached that conclusion based on medical records, contemporaneous video and documentary evidence, and interviews with victims and survivors.”

Khan then adds: “My Office also continues to investigate reports of sexual violence committed on 7 October.”

That is all he says about rape and sexual violence.

The ICC expert panel report contains one paragraph mentioning rape and sexual violence that contains very similar language.

The report comments that with respect to the three Hamas leaders, the chief prosecutor:

“[S]eeks to charge them with the war crimes of rape and other forms of sexual violence, torture, cruel treatment, and outrages upon personal dignity and the crimes against humanity of rape and other forms of sexual violence, torture, and other inhumane acts for acts committed against Israeli hostages while they were in captivity. The Panel notes the Prosecutor’s statement that his investigations continue, including in relation to evidence of sexual violence on 7 October itself.”

What is notable here?

First, the charges of rape and sexual violence refer only to such alleged crimes occurring after 7 October against persons in captivity and not on 7 October as part of any systematic plan.

Second, Khan’s assertion that his office “also continues to investigate reports of sexual violence committed on 7 October,” can be read as confirmation that such investigations have yet to yield any evidence he considers capable of supporting charges.

But does that mean that Khan possesses enough evidence of rapes and sexual violence against Israelis in captivity to warrant charges against Hamas leaders?

Obviously, we have not seen all the evidence that Khan claims to possess, but despite that we can fairly confidently assess that he does not.

For seven months Israel has engaged in a no-holds-barred propaganda campaign to push its 7 October rape claims. Not only has it failed to identify a single credible victim or eyewitness of 7 October rapes, but all of its atrocity claims about sexual violence on that day have collapsed under scrutiny.

Even Physicians for Human Rights-Israel has had to repudiate the false claims it helped Israel disseminate – an attempt by a once-respected human rights group to salvage the credibility it has perhaps fatally damaged by indulging in atrocity propaganda.

Shifting the focus to captives

So with the 7 October rape claims in tatters, Israeli propagandists had to refocus on accusations that rapes and sexual violence have been taking place in captivity.

For example, Israel’s UN ambassador Gilad Erdan recently lashed out at the world body, asserting that “the Security Council and the UN have done nothing to free the hostages who are subject to rape and torture.”

And this became a central theme of the recent propaganda film Screams Before Silence that was narrated by billionaire former Facebook executive Sheryl Sandberg.

We took a close look at the film and demonstrated how it is a fraud in a recent episode of The Electronic Intifada Livestream.

In our segment we also addressed the only specific claim of sexual violence of someone in captivity, those made by former Israeli captive Amit Soussana. Her claims are featured heavily in the Sandberg film.

In his Monday statement, ICC prosecutor Khan does not mention Soussana or any other victim by name, but since she is the only person who has been identified as a victim of any alleged sexual attack, it is reasonable to assume that her case forms part of his file.

The only alleged victim so far

Starting in late March, Soussana’s story was heavily promoted by The New York Times and the Israeli government’s propaganda apparatus in what appears to have been a coordinated campaign to refocus and revive the discredited sexual violence narrative.

In the Sandberg film, Soussana describes a harrowing experience, the one she told the Times about in March.

Soussana does not claim that she was sexually attacked on 7 October. She claims that while she was held in Gaza, one of her guards, whose name she gives as Muhammad, forced her on one occasion to perform an unspecified sexual act.

Soussana only publicly revealed this account months after her return from Gaza and in the context of a media campaign involving the Times, the Sandberg film and the Israeli government.

When she first spoke to the media in January, Soussana made no mention of sexual violence. Nor has any other Israeli released from Gaza to date made claims that they were attacked in a similar manner.

Soussana does not claim that there are any witnesses to what she says she experienced in Gaza so it is impossible to verify or completely discount her claim – and nor is it not necessary to do so for the purpose of assessing Khan’s charges against Hamas leaders.

The key point is that even if we take Soussana’s account to be entirely true, it does not support the thesis that Hamas leaders ordered or carried out “Rape and other acts of sexual violence as crimes against humanity” and “also as war crimes.”

Soussana describes one individual taking advantage of his power over her in an isolated situation and on a single occasion.

Nothing in her account – again, even if taken as completely true – sustains the accusation that there was a campaign of mass rape on 7 October or against Israelis held in captivity afterwards.

Of course, as noted, it is possible that Khan has other evidence, but if such evidence existed, Israel would undoubtedly have already aired it as part of its propaganda campaign. So far the Soussana story is its most compelling case and remains the only instance in which the identity of a victim is said to be known.

Meanwhile, Khan has so far completely ignored the mounting evidence of systematic sexual violence against Palestinians by Israel, including first-hand victim accounts.

All that goes to underscore the political nature of Khan’s charges against the Palestinian resistance leaders, charges that appear designed to lessen and dilute the effect of his necessary, but belated and far from adequate, charges against Netanyahu and Gallant.