B. War crimes

278. In relation to all incidents investigated by the Commission that took place in villages and towns and at the Nova festival, the Commission concludes on reasonable grounds that members of Hamas and of other Palestinian armed groups were aware that the victims were civilians taking no active part in the hostilities and that, in the case of Nahal Oz military outpost, several victims were soldiers who were hors de combat. The Commission also concludes on reasonable grounds that nevertheless those members of the armed groups proceeded to target and attack these protected persons.

The war crime of intentionally directing attacks against civilians

279. Where members of Palestinian armed groups targeted civilians and caused deaths and injuries, the Commission concludes on reasonable grounds that members of Hamas military wing and of other Palestinian armed groups committed the war crime of intentionally directing attacks against civilians not taking any direct part in the hostilities.

The war crime of murder

280. The Commission finds that members of Hamas military wing and of other Palestinian armed groups intentionally shot and killed residents of kibbutzim and other civilian locations who were not taking any direct part in the hostilities, including women, young children and teenagers, and older people. This pattern was identified in all locations investigated by the Commission, including kibbutzim Be’eri, Nir Oz, Alumim, Mefalsim, Kfar Aza and Nahal Oz, Sderot, Zikim beach, the Nova festival and road 232. The Commission concludes on reasonable grounds that members of Hamas military wing, and of other Palestinian armed groups have committed the war crime of murder.

281. The Commission investigated an incident involving the shooting and killing of unarmed Israeli female soldiers who were in civilian clothing at the time of the attack on 7 October 2023, in the Nahal Oz outpost. The Commission finds on reasonable grounds that, in relation to unarmed soldiers who were wounded when shot at and killed, the war crime of murder against a soldier hors de combat was committed.

282. The Commission finds on reasonable grounds that members of Hamas military wing and of Palestinian Islamic Jihad committed the war crime of murder when they intentionally targeted civilians through the launching of rockets and mortars from Gaza into Israel, which resulted in the killing of civilians in Israel on 7 October and in the weeks that followed. The war crime of violence to life and person (cruel treatment and torture)

283. The Commission finds that members of Hamas military wing and of other Palestinian armed groups severed body parts and set houses on fire while civilians were still inside. Members of Hamas military wing and of other Palestinian armed groups intentionally set civilians’ houses on fire, knowing that the inhabitants were hiding in the safe rooms. This caused the inhabitants in the safe rooms to suffocate due to the fire smoke. In one instance investigated by the Commission, three children suffocated to death from the smoke.¹ The Commission finds reasonable grounds to conclude that, in addition to the war crime of murder, victims were subjected to cruel treatment amounting to the war crime of torture in several locations.

284. In relation to 17-year-old Tomer Arava, who was captured by members of the Al-Qassam Brigades of Hamas and forced to lure other families out of hiding and who was later found dead,² the Commission finds on reasonable grounds that, in addition to the war crime of murder committed by unknown persons, the war crime of cruel treatment was committed by members of the Al-Qassam Brigades.

285. In relation to a Thai national from Nir Oz who was repeatedly attacked with a garden hoe while lying on the ground, the Commission finds these acts, in addition to the war crime of murder, to constitute the war crime of torture. The war crime of outrages upon personal dignity

286. The Commission notes at the outset that the war crime of outrages upon personal dignity can be committed against the dead.³ Parties to a conflict must take all possible measures to prevent the bodies of the dead from being despoiled. The mutilation of dead bodies is prohibited.⁴

287. The Commission finds that members of Hamas military wing and of other Palestinian armed groups committed several specific acts against the bodies of victims, including the burning of bodies and the decapitation of bodies, that constitute the war crime of outrages upon personal dignity. The Commission also finds that the act of recording the desecration of bodies, including taking photos/recording while standing on the head of a dead person and mutilating the bodies of victims, including by stabbing and gunshots, constitutes outrages on personal dignity.

288. The Commission highlights that, in several cases it investigated involving the abduction of people or bodies from Israel to Gaza, those abducted, including bodies of deceased persons, were subjected to degrading and humiliating treatment,⁵ constituting the war crime of outrages upon personal dignity.

289. The Commission also confirms the gendered nature of the crime of outrages upon personal dignity in several cases, in particular humiliating and degrading treatment, including any form of indecent assault and coerced intimacy, against women while captured in southern Israel and brought to Gaza.

290. Other gender-based crimes of outrages upon personal dignity include the desecration of undressed bodies, several of which were made visible in public and recorded while the acts were celebrated by the perpetrators and/or bystanders. The Commission particularly notes that the egregious nature and militants’ explicit lack of respect for the dignity of a woman who was paraded semi-naked in the back of truck in Gaza ⁶ after she was killed and the recording and dissemination of the desecration of the body of a stripped man in kibbutz Nahal Oz,⁷ such acts being without any kind of consideration for the deceased and their family members. War crime of rape and other forms of sexual violence

291. In relation to rape and other forms of sexual violence, the Commission concludes on reasonable grounds that perpetrators committed sexual violence on 7 October in southern Israel, including at the Nova festival, on road 232, at the Nahal Oz military outpost and at kibbutzim Re’im, Nir Oz and Kfar Aza. This conclusion is based, among other factors, on the state and position in which many of the bodies of victims were found. Due to the lack of evidence concerning the circumstances of the deaths of the victims, the Commission is unable to determine the exact identity of the perpetrators and whether Hamas military wing, other Palestinian armed groups or civilians from Gaza were responsible for these crimes.

292. In the case where a male victim was found with a gun in his anus, the Commission could not confirm whether the act was committed against the victim before or after death. If the act was committed before death, it would constitute the war crimes of torture and rape. Notwithstanding if it was committed before or after death, the act constitutes the war crime of outrage upon personal dignity. The war crime of destroying or seizing the property of an adversary

293. The Commission finds that hundreds of structures were damaged or destroyed in Israeli kibbutzim and towns, including Be’eri and Nir Oz, by members of Hamas and other Palestinian armed groups.⁸ The Commission finds that members of Hamas military wing and of other armed groups intentionally set fire to houses that belonged to civilians⁹ in the absence of any military objectives.

294. The Commission finds on reasonable grounds that members of Hamas and of other Palestinian armed groups committed the war crime of destroying the property of civilians, particularly their houses, without any requirement of military necessity. The war crime of taking hostages and inhumane treatment

295. The Commission finds, on reasonable grounds, that 252¹⁰ people, including 36 children, 71 civilian women, 124 civilian men and more than 20 soldiers, were abducted to Gaza on 7 October 2023.¹¹ Those abducted were taken to Gaza and detained there. The Commission refers to statements made by Hamas with demands for release of Palestinian prisoners from Israeli prisons in return for the release of Israeli hostages.¹² From 7 October until the date of the completion of this report on 31 May 2024, 128 hostages have been released or rescued. This number includes bodies retrieved of killed hostages. 128 hostages, including those abducted prior to 7 October, remain in captivity alive or dead.¹³

296. In relation to one case in kibbutz Be’eri, where al-Qassam Brigades and other armed groups captured 15 civilians with the aim of demanding safe passage to Gaza, the Commission finds that this constitutes the war crime of taking hostages. The Commission also verified that, in an attempt to surrender, the Hamas military wing commander used an Israeli hostage to shield himself from potential attack as he walked out of the house. The Commission finds on reasonable grounds that the commander committed the war crime of using a civilian as a human shield.

297. The Commission found that the war crime of taking hostages was committed, in most cases together with outrages on personal dignity and inhumane treatment, including sexual and gender based violence, such as assault, harassment and intimidation against women while abducted in Israel and taken to Gaza.

298. The Commission finds on reasonable grounds that members of Hamas military wing and of other Palestinian armed groups have committed the war crime of taking hostages.

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Sources:

Footnotes

1. See para 172. ↩

2. See paras 181-187. ↩

3. ICC, Elements of Crimes, art.s 8(2)(b)(xxi) and 8(2)(c)(ii). ↩

4. ICRC Customary International Humanitarian Law, Volume I: Rules, rule 113; IAC: GCIV, art. 16; API, art. 34(1); NIAC: APII, art. 8. ↩

5. See paras 60-61. ↩

6. See para 157. ↩

7. See paras 150-151. ↩

8. See paras 46 and 67. ↩

9. See para 41. ↩

10. https://www.gov.il/en/departments/news/swords-of-iron-war-in-the-south-7-oct-2023 ↩

11. https://www.gov.il/en/departments/news/swords-of-iron-war-in-the-south-7-oct-2023 ↩

12. See para 274. ↩

13. https://www.gov.il/en/departments/news/swords-of-iron-war-in-the-south-7-oct-2023 ↩