30 No. 78 JUSTICE – if not impossible – to legally link a specific perpetrator to a specific act of harm and a specific victim, as is required in the legal response to sexual violence directed at an individual. Moreover, CRSV is characterized by an almost absolute silencing of victims – whether due to the magnitude of the trauma and aspects related to shame, stigma, guilt, or cultural and social conventions, or because the victims are murdered and silenced forever. Thus, for example, during the October 7 attack, most victims were murdered during or after the acts of sexual violence, and those who did survive are, in many cases, suffering from severe trauma that prevents them from reporting what occurred. Without adapting the legal paradigm to the distinctive characteristics of CRSV, it will never be possible to establish an evidentiary picture of the events.16 This reality is compounded by the fact that unlike a confined “crime scene” characteristic of many cases of sexual violence directed at the individual, which can be isolated and from which samples can be collected, CRSV is frequently perpetrated within the context of a widespread or systematic attack, in which the relevant area effectively constitutes a war zone. Securing and preserving such an area is impossible, as is conducting organized evidence collection and in-depth forensic investigations.17 This was the scenario on and in the days following October 7, when the entire southwestern region of Israel remained an active war zone in which priority was understandably given to clearing the area of terrorists, rescue operations, and life-saving operations. Forces operating in the field frequently acted without coordination or organization and lacked professional expertise in gathering information and evidence. As a result, many arenas were compromised from an evidentiary standpoint. Forensic investigations were not conducted, scenes were not documented in real time, and no samples were collected from victims.18 The prospect of establishing the premeditated and pre-planned nature of CRSV also constitutes a complex challenge. As noted in the Policy Paper by the office of the ICC Prosecutor, it has been demonstrated through experience that there is often no evidence of orders to commit sexual crimes.19 Many assailants make concerted efforts to conceal evidence of pre-planning, directives, or pre-conditioning for the use of sexual violence as a weapon of war. Exposing such advance planning undermines the attacking force’s ability to construct a narrative portraying the attack as a “legitimate” military activity. Paradoxically, while other atrocities can be misrepresented as forms of “resistance” or “freedom fighting,” sexual violence is invariably perceived as taboo, illegitimate, and unjustifiable. Accordingly, perpetrators always have a vested interest in obscuring, concealing, and camouflaging pre-planning or intent, to preclude the possibility of proving that sexual violence was employed as a weapon of war. As noted above, additional challenges include the significant difficulty of linking specific perpetrators to specific victims, which undermines the evidentiary basis for ascribing responsibility. Another challenge related to defining the acts that constitute CRSV is the difficulty in identifying the specific acts themselves and orienting them within a legal framework. While the challenges presented here are not exhaustive, they do constitute the main barriers to achieving justice in cases of CRSV and serve as key obstacles to prosecution and accountability. In A Quest for Justice, we proposed legal solutions that would help pave the path to accountability. I will briefly outline these solutions, beginning with the evidentiary plane and thereafter turning to the plane of substantive responsibility. Addressing the Evidentiary Challenges – Developing an Evidentiary Paradigm Adapted to the Prosecution of Conflict Related Sexual Violence Law enforcement authorities, generally experienced in dealing with sexual violence directed at the individual, are accustomed to relying on a paradigm that focuses primarily on the victims’ direct testimony, which they perceive 16. Halperin-Kaddari, Ben-Or, Zagagi-Pinhas, A Quest for Justice, supra note 2, at 58; ICC Policy Paper, supra note 14, at § 50. 17. Supra note 2, at 59. 18. Vardit Avidan, Shir Bukra and Hodaya Shaked, led by Yifat Bitton, CHALLENGES IN IDENTIFYING AND DOCUMENTING SEXUAL CRIMES COMMITTED DURING A TERRORIST ATTACK (2024). 19. Supra note 14, at § 81.
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