It has become clear that when Hamas attacked Israel on Oct. 7, rape and sexual assault were committed against both women and men. Further, according to reports made by former hostages, for some, sexual assault continued and may still be occurring to those remaining in captivity. The result of these acts will be a plague on survivors as well as the broad and terrorized Israeli population. The psychological resolution — both individual and societal — is uncertain.
The use of sexual violence by Hamas was not, however, the act of enraged, cold-blooded and undisciplined killers. It was a tactical act of a strategy from a disciplined fighting force that had trained for this mission and deeply understands the Israeli mind.
“Rape” is defined as unwanted and forced sexual intercourse. “Sexual assault” occurs when any unwanted sexual contact happens without consent. International law, drawing from the Geneva Conventions and the Rome Statute, has long forbidden the use of rape and sexual assault as tools in military conflict. Such actions are considered a war crime, a crime against humanity, torture, or may even comprise a component of genocide. When sexual violence is utilized at scale against a population, it may be able to tip the scale of battle from defeat to victory.
In war, sexual violence may occur in three distinct circumstances.
It may be the actions of an individual soldier presented with an opportunity. In such a scenario, rape is a criminal wrong and prosecuted as such. The Uniform Code of Military Justice can impose a maximum punishment for rape of life without the eligibility of parole or even, on occasion, the death penalty.
Sexual violence may occur on a larger scale, not explicitly ordered but not opposed. This is the idea of sexual violence as an act of retribution against an enemy or a form of bonus payment given to soldiers. In Shakespeare’s “Julius Caesar,” Mark Antony in Act 3, Scene 1 exclaims “cry Havoc! And let slip the dogs of war.” The meaning of this is clear — Antony is calling for his soldiers to rape, loot and pillage.
According to 50 USC Ch. 39: the spoils of war refers to “enemy movable property lawfully captured, seized, confiscated, or found which has become United States property in accordance with the laws of war.” According to Rule 49 in International Humanitarian Law, “War Booty” permits the parties in a conflict to seize military equipment from the opposing side and claim it. In most instances, seized property can’t be taken by individual soldiers for personal use but remains the property of the military force.
The ancient Romans considered war rape of women to be acceptable and within the rules of war. Warriors considered conquered women to be legitimate booty and useful as wives, concubines or slaves. Women were considered property, as they were owned by a man. Consequently, rape was a property crime committed against the man who owned the woman.
Rape as a weapon of war has occurred commonly in the last century. In the Rape of Nanjing, from December 1937 to January 1938, the International Military Tribunal for the Far East estimated 20,000 women, including some children and the elderly, were raped by the Imperial Japanese army. During World War II, both Allied and Axis armies raped the enemy to terrorize the civilian population and demoralize opposing troops. Reports are surfacing of mass acts of sexual violence by Russian troops against Ukrainian civilians in the current Russia-Ukraine war. An alarming rise in reports of rape and abduction are also coming from the current war in Sudan.
Tactically, the use of rape to demoralize an enemy intends to break the will of the opponent so they capitulate. Hamas carried out a classic military raid, including the element of surprise and the intent to withdraw. With hostages, Hamas withdrew to prepared fighting positions to conduct complex ambushes against the inevitable Israeli military reply. These ambushes are ongoing. Recently, nine soldiers in a single Israeli Defense Force brigade were killed, demonstrating that Hamas retains a capacity to fight.
All strategies of war require, at first, an understanding of the mind of the enemy. When attacked, what will the enemy do in reply? The gathering of intelligence by Hamas against Israel sought to estimate this very thing. Hamas had extensive experience and could gauge the technical limits, including deep understanding of the sort of weapons and capacities Israel might bring in the battlefield. Of course, analysis is not infallible, and estimates may be partly or critically wrong. In advance of Oct. 7, Israeli intelligence gathering may have suffered from the signal-to-noise problem in its own attempts to know the mind of Hamas — or, worse, simply underestimated what Hamas could do.
In a recent report from the New York Times, the allegation is made that Israel had obtained a document describing the Hamas plan of attack in detail. This 40-page plan, called “Jericho Wall” was seen by senior Israeli officials who failed to act upon it. Whether or not advanced warning on the part of Israel could have changed the outcome, what is clear is that the Hamas assault was planned and practiced prior to Oct. 7. In Jericho Wall, Hamas appeared to also have sensitive Israeli military information. What is likely, but not reported, is that Hamas understood Israel would strike back at Hamas with intensity and resolve.
This Israeli military response is what Hamas may have desired all along. As Hamas embedded itself in the civilian population, and in hospitals in particular, a surgical strike against Hamas while sparing innocent civilians would be impossible. When hospitals become a place where military strikes originate, international law nullifies immunity. No matter; a restive public, pre-primed and fueled with anti-Israel sentiment, could not tolerate such a war scenario. In fighting style, Israel must continue to respect international humanitarian law while finding and targeting the needles in the needle stack. Consequently, Israel is slowly winning the ground war but rapidly losing the public opinion war.
In the Israel-Hamas war, the horror of the act of rape grips us and shocks the consciousness. The idea that these mass rapes were not simply the spoils of war but a tactic intended to instigate the current Israeli response must be realistically considered. Hamas has shown itself to be capable of playing a deadly long game and proven itself implacable, cruel and single-minded. As Hamas seeks to crush Israel from the river to the sea once and for all, it draws Israel into the predictable response that will see tens of thousands of Gazans killed. Hamas appears willing to make that sacrifice. The undecided question is whether Hamas will rise out of the rubble that remains of Gaza, however miserably, by this “risk it all” bet.
Joel Zivot, MD, MA, JM, is associate professor of Anesthesiology and Surgery, Emory School of Medicine; former adjunct professor at the Emory School of Law; and senior fellow in the Emory Center for Ethics.