32 No. 78 JUSTICE paradigm tailored to sexual violence directed at individuals will lead, unnecessarily, to the exclusion of a wide range of significant evidence and, in the long run, to impunity. Any law enforcement system required to contend with a powerful and devastating attack that includes CRSV must recognize the unique obstacles involved, understand the depth of the complexities, and articulate a resultant policy for addressing such acts. This paradigm must be reflected both at the stage of evidence collection – which must be performed with due regard for these elementary principles – and at the stage of formulating legal action. Addressing the evidentiary challenges is a crucial component of the legal roadmap aimed at achieving accountability for crimes of CRSV. However, this is not sufficient on its own. At the same time, it is both important and necessary to address the fundamental obstacles to the ascription of responsibility, an issue that will be examined in the following section. Joint Responsibility as a Means of Establishing Substantive Criminal Accountability Although crimes of CRSV are among the most horrific and harrowing acts in human history, they pose significant challenges for substantive criminal law. Personal autonomy, which underpins the principle of culpability in modern criminal law, becomes obscured in a mass attack that includes crimes of sexual violence. The blurring of the boundaries of responsibility that occurs within the violent actions of a coordinated mob, drawing its force from the collective power of its members, necessitates a corresponding adaptation of legal principles to meet this distorted reality.26 The individual’s personal choice to violate protected social interests, exercised willingly and with awareness of the consequences of such actions, and which forms the basis of culpability,27 differs from a mass attack operating according to mob dynamics, in which each individual both legitimizes the actions of others and derives legitimacy for their own actions from them.28 The October 7 attack, like other mass attacks in which sexual violence is employed as a weapon of war, was driven by indoctrination aimed at genocide and dehumanization. Such attacks provide the assailants with a sphere of violence and brutality while stripping the attacked population of its humanity. As a result, they generate a moral vacuum or “alternative morality” in which commonly accepted moral conceptions and fundamental societal values are abandoned, while acts of extreme brutality are normalized and justified in the eyes of the perpetrators. Based on this understanding, a substantive legal conception was developed for the ascription of responsibility in cases of mass attacks grounded in genocidal intent and/or indoctrination of dehumanization. In brief, we contend that indoctrination rooted in genocidal ideology and absolute dehumanization establishes, in our view, the requisite awareness among participants that the attack may include acts of sexual violence. By its very nature, such violence is congruent with the underlying rationale of this form of indoctrination, as evidenced by its recurring manifestation in conflict settings marked by similarly extreme and brutal motivations.29 It should be underscored that, in addressing the indoctrination underlying the attack, we do not seek to determine its legal classification under international law. Rather, our focus is on the nature of the underlying indoctrination, insofar as it informs the interpretation of the substantive responsibility of those who perpetrated the acts. The legal and normative rationale advanced by the Dinah Project and elaborated upon in our book,30 is that the 26. Mordechai Kremnitzer, “Perpetrator in Criminal Law: A Profile,” 1 PLILIM 65, 72 (1990) (Hebrew). Among other claims, Prof. Kremnitzer insists that the usual concepts of criminal responsibility do not always fit “criminal” phenomena such as war crimes. In these circumstances, he undertakes to look at things in an expansive way, stemming from the uniqueness of the situation. 27. Mordechai Kremnitzer, “The Principle of Culpability,” 13 BAR ILAN LAW STUDIES 103, n. 109 (1996-1997). Kant and Hegel are the fathers of retributive morality, from which the conceptual basis of the retributive justification for imposing criminal responsibility is derived; Hadar Dancig-Rosenberg, “The arrangement of imposing responsibility for a dragged offense – reflections on guilt, proportionality and a different balancing formula, a deontological analysis following CrimA 4424/98, Silgado v. State of Israel.” See supra note 2, at 47. 28. Supra note 2, at 48. 29. Supra note 15. 30. Id. at 48-50.
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