31 Fall 2026 as the only valid avenue for proving such acts. However, when addressing CRSV, this is neither the sole paradigm nor the most appropriate one. A narrow focus on victims’ testimony and reliance on a paradigm tailored to sexual violence directed at the individual will, inevitably, filter out other important forms of evidence that exist specifically in crimes of conflict related sexual violence. As noted, one of the defining characteristics of CRSV is its aim to destabilize and dismantle the community. Accordingly, such sexual violence is not perpetrated in secrecy, but often specifically in public. As a result, as was also the case during the October 7 attack – relevant testimony was obtained from individuals who witnessed or heard firsthand in real time acts of sexual violence during the attack. These are credible and reliable testimonies that stand on their own merit.20 Additional testimonies that may serve as well-grounded evidence include accounts by witnesses who, soon after the attack, heard directly from victims of sexual violence about what had occurred, while the event was still vividly imprinted upon them. Such statements, made by witnesses, are known as res gestae – a well-established exception to the rule that excludes hearsay evidence, and which is recognized in many legal systems.21 Regrettably, legal systems tend – wrongly – to disregard such evidence when addressing crimes of sexual violence directed at the individual. If they were to also do so in the context of CRSV, this could result in the unjust nullification of the weight and significance of such evidence, due to a failure to grasp the phenomenon’s unique characteristics. Accordingly, when constructing the legal and evidentiary picture, it is important to identify, examine, and document all the evidence. Another category of evidence that stands on its own and which carries substantial probative force in shaping the legal and evidentiary framework for CRSV is circumstantial evidence. From a legal standpoint, when the requisite conditions are met, the weight of such evidence is no less than that of direct evidence, and provides a response to the challenges discussed above with respect to proving methods, pre-planning, intent, etc.22 Circumstantial evidence may indicate, inter alia, the broader context, the indoctrination underlying the attack, advance planning, as well as possible indications of directives encouraging the perpetration of acts of sexual violence, conditioning toward such acts, or their “normalization.”23 Integrating the various characteristics of the attack may serve to establish elements relating to the attack itself, including the existence of recurring patterns that may indicate a modus operandi and aspects of pre-planning. Findings identified at the scenes likewise provide corroboration and significant additional evidentiary support for each of the other forms of evidence concerning crimes of sexual violence.24 The fact that CRSV is directed at harming not only the individual but also the community necessitates evidentiary and legal reference to the harm inflicted upon the community as a protected legal interest. Accordingly, it is important to establish the communal dimension of the harm and its defining features. The harm to the community itself, its scope, and the way it is inflicted, are not merely a necessary descriptive backdrop to crimes of sexual violence but protected legal interests in their own right.25 In conclusion of this section, it is important to examine the evidentiary aspects of crimes of CRSV through a paradigm that considers the characteristics of the phenomenon and is adapted to its challenges. Adherence to a 20. Supra note 2, at 64-65; Yaniv Vaki, EVIDENCE LAW 1408-1410 (2021) (Hebrew). 21. Supra note 2, at 66. 22. Id. at 67-68. 23. UN Secretary-General, Conflict-Related Sexual Violence Report of the United Nations Secretary-General, UN Doc. S/2024/292 (April 4, 2024): “Nevertheless, considering the nature of rape, which often does not result in visible injuries, this possibility cannot be ruled out based solely on the medicolegal assessment. Therefore, the mission team concluded that circumstantial indicators, like the position of the corpse and the state of clothing, should also be considered when determining the occurrence of sexual violations, in addition to witness and survivor testimony”; SRSG-SVC MISSION REPORT, at 18, ¶ 74. 24. Supra note 2, at 62. 25. Id. at 63.
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