Impartiality of Judgment Doesn't Mean An Equal Outcome
It's important to look at the NYT piece on Israel's brutal treatment of prisoners and an Israeli report on October 7 with equal measures of scrutiny. That doesn't mean they are of equal quality.
DEAR READERS: Please be advised, this newsletter deals with the subject of sexual violence. It does not include any graphic descriptions, but the subject is present throughout.
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My Recent Articles and Media
As support for Israel declines in the U.S., the ‘Special Relationship 2.0’ is starting to take shape
Benjamin Netanyahu and his allies in Congress have begun calling for an end to U.S. aid to Israel, but this won't end the "special relationship" between the two countries. In fact, recent signs suggest it may only deepen U.S. military ties to Israel.
Mondoweiss, May 17, 2026
On May 15, my friend and colleague Dahlia Scheindlin wrote a piece in Haaretz about the response to Nicholas Kristof’s explosive article in the New York Times detailing sexual abuse, torture, and rape of Palestinian prisoners by Israeli security forces. It was headlined, “Everybody Loses in the Cynical Israeli-Palestinian Sexual Violence Competition.”
Indeed, there are no winners in a contest of horrors, nor is it useful or factual to try to establish as the sub-headline puts it, “the dangerous notion that these instances are uniquely evil.” That is, advocates of Israel and of the Palestinians each use allegations of sexual violence to paint the other as unimaginably monsters so bereft of human decency that they cannot be reasoned with, only defeated and destroyed.
Dahlia is absolutely right that this supposed moral purity doesn’t exist. Conflict is ugly, and it makes beasts of many on all sides, regardless of who is the oppressor and who is the oppressed, who is the powerful and who is the weaker. Sadly, sexual violence is a common occurrence in conflict, again, regardless of cultural views around sex. The vast majority of the practitioners of sexual violence in conflict are men, even when one accounts for the fact that most fighters are men. But women are not completely immune to the corrupting influence of warfare.
Dahlia approaches the question from the point of view of those who blame only the “other,” while claiming innocence for their side. In those terms, I fully agree with her point. But there are other aspects of the accusations flying back and forth at this time. Those accusations are connected to Kristof’s report and the one that came out the very next day, from the so-called “Civil Commission” that accuses Palestinians of sexual assault that was planned, ordered by the leadership, and used as a tool of genocide.
Dahlia writes, “The political and power asymmetry of the conflict in no way contradicts the need for equal moral standards, equal commitment to human decency and international law, and equal commitment to truth.”
That’s true, as far as ethics and commitments to law and truth. But applying those principles with that sort of impartiality does not necessarily imply equality of outcome. Applying fair standards to both Israelis and Palestinians may not show that each side committed the same crimes. We must judge each by the same standards, but also by their individual merits.
A commitment to law, truth, and justice means we evaluate the reports from Nicholas Kristof, the “Civil Commission,” B’Tselem, the United Nations, the Public Committee Against Torture in Israel, and any other with the same level of necessary skepticism, demanding the same burden of proof.
When we do that, it turns out we don’t actually come out in the same place.
Two reports of very different reliability
The Civil Commission fails the test of its own evidence. It uses testimony from some “witnesses” who have already been discredited, and makes claims without backing them up with testimony or other evidence in some instances.
Some will say that the allegation of dubious sources has been leveled at Kristoff, but the two are not the same.
Kristoff has been criticized for relying on Shaiel Ben-Ephraim, whose credibility has been questioned because of past incidents that are wholly unrelated to this report.
The Civil Commission repeatedly cites the testimony of Raz Cohen, who has repeatedly changed his story about what happened on October 7, which caused sources to be extremely skeptical of his accounts. The report also cites Shari Mendes, who was caught fabricating stories about October 7. There are others, but the point is that the Civil Commission was not particularly discerning about its sources. Ben-Ephraim has no history of fabricating the allegations we are speaking about here.
Kristof has also been attacked for relying on Euro-Med Monitor, which Israel has accused of being connected to Hamas. But Israel has leveled that accusation against virtually every human rights organization or institution they don’t like. As Sari Bashi, executive director of the Public Committee Against Torture in Israel and a long-time and globally respected human rights leader put it, “Euromed is a network of respected human rights organizations in the Middle East and Europe to which PCATI (together with Amnesty, Human Rights Watch and others) belongs. The information in the Euromed report (cited in Kristof’s piece) is consistent with the information that we collect in testimonies and have reported publicly as well.”
These are bad faith allegations that attempt to undermine a very credible report by Kristof. They are not comparable to the problems with the Civil Commission’s sources, which have been shown to have offered contradictory or false testimony specifically about the events they are being cited about.
But the real problem is the quality of the research in each report. Noa Epstein of Haaretz contrasted the two reports sharply: “Kristof’s investigation presents readers with an evidentiary foundation they can examine: personal testimonies, some given under full names and openly on camera, corroboration in certain cases, official responses and explicit caveats regarding what could and could not be verified. Not every detail has been conclusively proven, and Kristof himself does not claim otherwise. But he presents serious, meticulous journalistic work.
“The Civil Commission report, published the day after The New York Times investigation, describes horrific sexual crimes committed on October 7 and while Israeli hostages were held in Gaza. It concludes that sexual violence was “systematic and integral” to Hamas’ assault. There is no reason to trivialize these claims, but if we are interested in seriously discussing the matter, it must be said that the material available to the reader is limited. The report describes hundreds of testimonies, thousands of videos and photographs, and recurring patterns, but it does not lay out the raw materials, the chain of corroboration or the connection between each case.”
Put simply, Epstein notices what I believe anyone would if they read each report with the same level of skepticism: Kristoff has a much stronger evidentiary basis for what he lays out than the Civil Commission.
Indeed, Epstein goes on to say, “[I]f we are interested in seriously discussing the matter, it must be said that the material available to the reader (in the Civil Commission report) is limited. The report describes hundreds of testimonies, thousands of videos and photographs, and recurring patterns, but it does not lay out the raw materials, the chain of corroboration or the connection between each case and the broader conclusion to the same extent that the New York Times piece does.”
I reached the same conclusion in my own examination of the Civil Commission’s 300-page report.
Two reports on sexual violence, and two different allegations
Then, we need to look at what is being alleged.
If the issue were as straightforward as holding individuals accountable for sexual violence, it would be easy and logical to settle for Dahlia’s formulation of even-handedness and blind justice. But there is more being alleged than that, and the implications are dire and immediate. Thus we are compelled to look deeper.
The case the civil commission makes is that Hamas’ use of sexual assault, up to and including rape, constitutes a predicate act that can amount to a charge of genocide. It contends not merely that sexual assaults occurred, but that they were part of a coordinated, pre-planned, and systematic program to destroy the Jewish presence, in part or whole, from the area from the Jordan River to the Mediterranean Sea.
That charge is unlikely to be upheld in any international court. But of greater immediate importance is the fact that genocide is ongoing in Gaza, and, as many international observers and human rights groups have pointed out, is threatening to manifest in the West Bank as well.
There is also the reality that the charges of sexual assault on October 7, some of which (usually the most salacious and outrageous ones) have since been proven false or unsubstantiated, fueled the genocidal atmosphere in Israel that led not only to the actions of the Israeli government and military leadership in Gaza, but also to the atrocities often committed by ordinary Israeli soldiers, which were tolerated, ignored, and sometimes even encouraged by their commanders, from the field commander to the very top of the military and governmental command chain.
This is not a matter of history, nor has it ended.
Israel continues to occupy some 60% of the Strip and launches near-daily attacks on the civilian population of Gaza. Since the ceasefire was imposed on Israel by the Trump administration on October 10, 2025, 856 fatalities and 2,463 injuries have been recorded among the population of Gaza, the overwhelming majority civilians (data provided by the United Nations as of May 15, 2026).
The Civil Commission alleges, but utterly fails to substantiate, a plan by Hamas leaders to use sexual assault as a tool of genocide. According to international humanitarian law, any act of sexual assault in the context of armed conflict is a war crime. But for it be a tool of genocide requires a deliberate attempt to use rape in the genocidal framework of destroying a people’s presence, in part or whole, in a given area. There is no evidence this was the case on October 7, or even in the much-better established cases of sexual assault against Israeli hostages in captivity.
That doesn’t mean there is no evidence of sexual assault. Quite the contrary. The UN mission under Pramila Paten found that “there are reasonable grounds to believe that conflict-related sexual violence occurred during the 7 October attacks in multiple locations across Gaza periphery…” The report also listed a variety of obstacles Israel placed in the way of the investigation and that they were unable to determine of the requisite conditions to prove any plan, orders, or direction was present.
That doesn’t diminish the heinous nature of whatever crimes were committed. But Israeli obstruction made estimating the scale and, more to the point, the intent of the crimes, as well as whether they were coordinated under orders impossible to determine.
Yet the International Criminal Court felt there was sufficient evidence to include sexual assault, including rape, in the charges it brought against three Hamas leaders, Yahiya Sinwar, Mohammed Deif, and Ismail Haniyeh. All of them have since been killed by Israel so the ICC will not be pursuing that investigation. But the charge itself implies there is noteworthy evidence of numerous cases of sexual violence, given how arduous the arrest warrant process is in the ICC.
Yet the Civil Commission report adds nothing to this still-opaque issue. Israel continues to obstruct investigations. We have first-hand accounts of victims of sexual assault only among the freed hostages. Yet two million people in Gaza continue to suffer from Israel’s vicious retribution for crimes whose scope and scale have not been established and whose very commission is only proven by common sense estimation of strong circumstantial evidence.
A credibility gap
On the other side, Kristof’s piece is meant to bring to light the accusations. He makes no charge of genocide, and he sticks to the facts of the crimes and their immediate effects on the victims.
Kristof himself is a seasoned reporter who has written and researched war crimes, including sexual assault, in many countries.
Cochav Elkayam-Levy, who is essentially the one-woman engine behind the Civil Commission, has considerably less credibility.
According to Raviv Drucker of Israel’s Channel 13, “They mention her starting a ‘civil commission’ to raise awareness. It bears mentioning that the name ‘civil commission’ is very bombastic. The commission is her. And she is the commission.”
Drucker cited the head of the Israel Prize committee as saying that Elkayam-Levy had been given the award because “she authored the Horrors Report” – a report on the mass rapes.
“But then we realize that there is no Horrors Report. There is simply no such report. It hasn’t been written, not by her and not by anyone,” Drucker explained. Presumably, the report she conveniently timed to appear the day after Kristof’s piece is that report that was supposed to have come out two years ago.
“There is this letter she sent two weeks after the catastrophe, after the slaughter of 7 October. But it was just a collection of newspaper headlines, a letter only a few pages long. There is no such report,” he added.
Even giving Elkayam-Levy every benefit of the doubt, her credibility is entirely questionable. Kristof’s is solid.
The documentation of Israel’s crimes against Palestinians is clearer than that of Palestinian crimes against Israelis. We do, after all, have the video evidence of the rape at Sde Teiman, as well as the reprehensible response of the Israeli far right in demanding that such actions be praised rather than prosecuted.
We have reports from B’Tselem, from the Public Committee Against Torture in Israel, from Euromed Monitor, and others. And we have the many first-hand accounts of victims who have come forward, despite the humiliation and trauma.
On the other side, we have photographs, and circumstantial evidence which, as the UN report made clear, strongly suggest that sexual assault happened in numerous places on October 7. We have several testimonies of freed hostages about sexual assault while they were in captivity.
Unfortunately, we also have numerous instances of lies that have been exposed, including by several people who play prominent roles in the Civil Commission report. We have the Israeli government adamantly refusing to cooperate with any investigation that might have substantiated or supported some of the Civil Commission’s thin conclusions. And we have only one victim testimony from the October 7 survivors, though we are repeatedly told there are many of them.
That doesn’t in any way negate the very real testimonies we have gotten from freed hostages and the one person who has testified about sexual assault on October 7. There is no reason to doubt them; again, under such circumstances, it would have been surprising if such incidents didn’t happen at all, sadly.
But if we are indeed trying to judge the accusations against both Palestinians and Israelis equally and fairly, we must also be prepared for the likelihood that the outcome is better for one side than the other, even if neither side is innocent.
This is not about a contest. Perpetrators, whether Israeli or Palestinian, have much to answer for and must be held accountable. It is about consequences. It is about an ongoing dehumanization of Palestinians. Israelis had plenty to be enraged about over October 7. But the elaborate web of falsehoods about sexual assault both cheapened the real experiences of victims on that day and ignited a vengeful fire that has killed more than 75,000 people directly and who can guess how many indirect deaths. That is a fire that needs to be brought under control with the facts, with full accountability of what did and did not happen, not fueled with more bombast and speculation.
Everyone needs to stop denying that crimes were committed. Everyone needs to stop trying to pretend that their own side is pure and the other side wholly evil.
We need to join together for every victim of sexual assault, Israeli and Palestinian and deal with each case as the crime it was without punishing entire peoples for the crimes of some. This is a chance to break the usual dynamic in Israel-Palestine, by applying justice to all sides, in the full context of the actions and circumstances of each crime. Instead, many have chosen to repeat that dynamic.
News Roundup
UAE and Israel established fund for joint defence acquisition, sources say
By Sean Mathews, Middle East Eye, May 18, 2026
US imposes sanctions on Gaza flotilla organisers amid Israeli crackdown
By Ali Harb, Al Jazeera, May 19, 2026
Smotrich Threatens to Clear West Bank Village Over ICC Request for Arrest Warrant Against Him
By Noa Shpigel, Jonathan Lisand Chen Maanit, Haaretz, May 19, 2026
Iran turns to natural gas to thwart oil crisis
By Bijan Khajehpour, Amwaj Media, May 18, 2026
After Insurgents Battle Military Junta, Mali Pushed Toward War and Economic Collapse
By Mamadou Diallou, Drop Site News, May 19, 2026
Hezbollah drones limiting 80% of Israeli army operations in Lebanon
The New Arab, May 19, 2026
Israel pushes for full Iran blockade as it awaits Trump’s next move
By Ben Caspit, Al-Monitor, May 19, 2026
UN Experts Sound Alarm Over Saudi Arabia’s Abusive Labor Governance System
By Michael Page, Human Rights Watch, May 19, 2026
“Strategic Balance” under Stress: Egypt and the U.S.-Israeli War with Iran
By Riccardo Fabiani, Dareen Khalifa, and Yasmine Farouk, Crisis Group, May 16, 2026
What North Korea Can Tell Us About America’s Future
By John Feffer, The Nation, May 19, 2026
The dangerous allure of a post-Netanyahu Israel
By Michael Schaeffer Omer-Man, Responsible Statecraft, May 18, 2026
Somaliland recognises Jerusalem as capital of Israel and will open an embassy
By Sean Mathews, Middle East Eye, May 19, 2026
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Interesting, and important, but in the end, irrelevant. Even if the reports of rape by Hamas are completely true, it doesn't make it okay for Israel to rape prisoners.
Like the old canard about the Arabs "not making proper use of the land," which a young and naive Zionist brought out a few years ago. I didn't say it wasn't true, that they were making proper use of the land. I said even if they weren't, it was theft. He said I had a point.