Responding to October 7th : Can renewed focus on WPS lead to bipartisan policy leadership, bridging divided perspectives of international criminal law?

by Dr Samantha Lakin

In this Fortis! series, guest blogger Dr. Samantha Lakin says focusing on Women, Peace, and Security (WPS) as a bedrock issue in international law will bridge divided stakeholders. In her blog series she will guide the reader through ways WPS reinforces a longstanding and universal rejection of Conflict-Related Sexual Violence (CRSV). In each installment, Dr. Lakin will take the reader inside a foreign policy problem which, “Demonstrates that there is a line that still holds, even if we are holding on to that line by our fingertips.” In her final installment, Dr. Lakin suggests how to increase bipartisan support of and commitment to upholding fundamental human rights among divided stakeholders. The views expressed are the author’s own and do not reflect the position of American Council on Women Peace and Security, its partners or affiliates.

Despite significant disagreement over the past 70 years about protection of human rights during war, there is a normative and universal rejection of Conflict-Related Sexual Violence (CRSV) among mainstream actors. Only the most fringe sectors deny CRSV as war crimes. 

Yet today, as we watch war unfold in real time, we see an increase in power politics marked by polarization. Organizations that once supported humanitarian law principles are engaging in activism undermining its development by silently forgiving acts like sexual violence and wartime rape in the name of a greater call for justice. Comparing victimhood is a slippery slope descending toward a zero-sum, losing game, where some victims’ needs are prioritized, often at the expense of others. Increased grievance yields increased social division.

Despite a rise in power politics and extremism, can bipartisan recommitment to rejecting CRSV as war crimes be a bridge toward better prevention and ending impunity? I argue that by reinforcing universally accepted human rights principles of the Women, Peace, and Security initiative, policymakers can mitigate the risk of deconstructing the promise of international law. 

Why international criminal law matters

In the devastation that followed World War II and for some 70 years since, nations have worked to forge pledges of “never again” into international law. Foreign policy experts and practitioners widely believe that ordinary legal systems are ill-equipped to deal with extraordinary crimes that are widespread and systematic in nature. 

Genocide Survivor at Nyamata Memorial Site, Rwanada

The building blocks of international law, including the Nuremberg Trials (1945/6), the International Military Tribunal for the Far East (1946), and hybrid courts like the International Criminal Tribunal for the former Yugoslavia (ICTY, 1993-2017) and the International Criminal Tribunal for Rwanda (ICTR, 1995-2012) were seen as steps in the right direction.

Forgiving CRSV

On October 7, 2023, Hamas terrorists attacked Israel. This sparked a war between Israel and Hamas. Opposing viewpoints from foreign governments, regional and international organizations, and global humanitarian actors all express deep concern about the patterns of violence taking place. They emphasize assaults on human dignity including gross violations of human rights, targeted attacks on civilians, and targeted sexual and gender-based violence. 

Reports from organizations working on the ground, especially along the southern border of Israel and Gaza, relay a chaotic humanitarian disaster. International response is highly polarized. Action is stalled by economic, political, and ideological debates that remain unresolved. In both Gaza and Israel, fear, mistrust, grief, and continued trauma contribute to rising tensions and diminished hope for a sustainable solution.

West Bank Street Art, 2011

Yet, reactions by the global public to reports of conflict-related sexual violence and rape as a tactic of war received overwhelming criticism, indicating a shared perspective that these crimes, including rape committed by Hamas on October 7th, cross a normative and moral line. 

Public Outrage at the “Photograph of the Year”

Immediately following the events of October 7th, international actors, foreign governments, and the UN hardly addressed or even acknowledged the use of sexual and gender-based violence as a significant tactic of war. In mid-March, attention abruptly changed as social and news media exploded with public outrage over a controversial photograph that was awarded first prize in the “Pictures of the Year” competition-the oldest international photojournalism competition in the world. 

Policy analysts with Slate describe the winning scene:

The featured photo is of Shani Louk, a 22-year-old German-Israeli civilian. She is lying facedown in a truck bed, partly naked and most likely dead, being driven through the streets of Gaza in the hours after the Oct. 7 massacre at the Nova festival. The men in the back of the truck brandish machine guns and grenade launchers. One of them casually drapes his leg over Louk’s exposed torso while another looks straight at the camera and points emphatically at her.

Surprisingly, despite a diverse range of reactions from those who are often on opposite sides of many human rights issues, responses to the photograph seemed to elicit a shared response. Just reading some of the major news headlines shows an overwhelming, negative reaction:

The “Picture of the Year” That Violates the Humanity of Its Subject: We shouldn’t see Shani Louk like this. (Slate)

Photo of Hamas terrorists parading Shani Louk’s body wins top award, sparking outrage (NY Post)

Shani Louk: Hamas victim’s father defends photo of body: Critics of an award-winning image from October 7 say it adds to the trauma. Louk’s family want it to be a piece of history (The Times, UK)

'Photo of the Year' photographer of Shani Louk photo should be prosecuted - opinion (Jerusalem Post)

Shani Louk’s body was laid to rest Sunday during a public funeral attended by hundreds in Israel. AFP via Getty Images

Although the headlines differ in their angles, they all gravitate toward a central theme. People weren’t outraged because the photo was graphic. Rather, outrage stemmed from feelings that the content of the photo was disrespectful and crossed a line. Celebrating and flaunting the act of rape by showing an innocent woman’s violated body, had gone too far. The overwhelming reaction was that the portrayal of Shani was inhumane.

Following instances like these, it is clear from public reactions documented in news and social media that a mainstream perspective prevails when innocent civilians, including women and children, become targets of sexual violence and rape as a tactic of war. 

These reactions to sexual and gender-based violence suggest that the issue transcends other polarizations, bringing people with divergent perspectives together based on a shared notion that crimes of sexual violence cross “a line.” This is not surprising considering that the International Criminal Tribunal for Rwanda legally classified rape as a war crime more than 25 years ago.

Last week, the Prosecutor of the International Criminal Court (ICC), Karim A.A. Khan KC, filed applications for warrants of arrest before Pre-Trial Chamber I of the ICC. The ICC Prosecutor requested warrants for three Hamas leaders for committing war crimes and crimes against humanity in Israel on October 7, 2023, including rape and sexual violence. The Prosecutor also requested warrants for two Israeli leaders deemed responsible for committing war crimes and crimes against humanity, in Gaza, since October 7th.  

Fernando Travesí, the Executive Director of the International Center for Transitional Justice (ICTJ), aptly makes the point that prosecuting war crimes has a positive impact for victims, especially of CRSV and war crimes.

Whether the arrest warrants are issued or not, bringing charges against Hamas for crimes committed on October 7th matters, just as bringing charges against the current Israeli government for war crimes committed in Gaza matters. It is important that crimes of rape and wartime sexual violence are understood, acknowledged, and addressed within international law, and among national policymakers.  

In my next post, I will look at how the U.S. Congress reached surprising bipartisan support to condemn rape as a weapon of war since October 7th, and discuss how reinforcing the normative rejection of CRSV during war might lead to further bipartisan agreement and action in the context of the U.S.  

Samantha Lakin, Ph.D.

Samantha Lakin is a researcher, educator, and specialist focused on issues of transitional justice, genocide and atrocity prevention, and human security in post-conflict and post-atrocity settings. Dr. Lakin has led research and policy teams in Rwanda, DRC, Ghana, Uganda, and countries in the Middle East/North Africa (MENA) region with organizations including Harvard Law School’s Program on Negotiation, Search for Common Ground, Inclusive Security, and the U.S. Department of State. She was a Fulbright Scholar in Rwanda and in Switzerland. Dr. Lakin holds a Ph.D. in History from the Strassler Center at Clark University and an M.A. in Law and Diplomacy from The Fletcher School at Tufts University. She is currently a Lecturer in Conflict Resolution at the University of Massachusetts Boston.

Twitter: https://twitter.com/S_Lakin1