33 Fall 2026 conscious decision of an individual to join a violent mob, unrestrained by moral constraint or operating according to an alternative morality that erases universal moral values, and to take part in an attack grounded in indoctrination, whether of a genocidal or dehumanizing nature, allows for – and justifies – the ascription of responsibility for all acts committed as part of the attack to each individual who knowingly chose to join such a mob, even if they did not physically carry out those acts.31 This approach is based on existing and well-established doctrines. One such doctrine is that of Joint Criminal Enterprise (JCE),32 which ascribes criminal liability to individuals who commit offenses together with others and who are aware of the consequences of their actions and of their contribution to the crime. An individual who joined an organization that openly espouses genocide and/or the dehumanization of others, understood the nature of their actions and chose to engage in them. The circumstances and context transform an abstract risk (namely, the risk that grave crimes against the right to life, bodily integrity, and liberty may be committed, without precise knowledge of possible specific crimes) into a concrete risk (namely, the risk that crimes constituting genocide, crimes against humanity, war crimes and/or any form of sexual violence as a weapon of war – will in fact be committed).33 Another doctrine upon which legal responsibility may be based is that of derivative liability: a principle that ascribes responsibility to accomplices to crimes, not only for the primary offense but also for additional offenses committed in the course of the joint action, even if they did not commit those offenses themselves,34 provided that the offenses committed were ones that a reasonable person could have foreseen,35 and that they bear a substantial nexus to the commission of the original offense.36 The doctrine of derivative liability assumes that even in the absence of actual awareness on the part of the defendant, in cases where a reasonable person in the same circumstances could have been aware, the defendant will bear responsibility for the derivative offenses due to the defendant’s initial willingness to enter into the risk-creating situation of collaborative criminal activity, one in which the defendant relinquishes control over the course of events, thereby elevating the risk that egregious crimes will be committed. These doctrines lead to the inevitable conclusion that responsibility may be ascribed to any participant acting within an unrestrained mob that has cast off all moral inhibitions or operated according to an “alternative morality” which erases universal moral values, and whose purpose was genocide, destruction or absolute dehumanization; or a large-scale, widespread, and systematic attack on the civilian population; viewing the victim as being less than human. According to the approach advocated by the Dinah Project, this establishes, beyond a reasonable doubt, the ability of each participant in the attack to foresee the concrete risk that crimes among the gravest in the statute book would indeed be committed – acts of extreme violence, including rape and sexual crimes.37 This conclusion is both 31. Id. at 48-49. 32. Supra note 10, at § 25; Amichai Cohen, “International Criminal Law,” in INTERNATIONAL LAW 445, 466-467 (Robbie Sabel & Yael Ronen eds., 3d ed. 2016); for a comprehensive analysis of the customary basis of JCE III and the jurisprudential precedents of the ICTY and ICTR, compared to the restrictive approach of the ICC on the issue of joint criminal responsibility, see Susana SaCouto, Leila Nadya Sadat, and Patricia Viseur Sellers, “Collective Criminality and Sexual Violence: Fixing a Failed Approach,” 33 LJIL 207 (2020); Women’s Initiative for Gender Justice, Judicial Approaches to Sexual and Gender Based Crimes at the International Criminal Court: Structural Shortcomings, Critical Improvements and Future Possibilities of Intersectional Justice (2023), available at https://4genderjustice.org/judicialapproaches-to-sexual-and-gender-based-crimes-at-the-international-criminal-court/ 33. Supra note 2, at 51. 34. The doctrine of derivative liability of partners, enshrined in Section 34A(a)(1) of the Israeli Penal Law, 1977, is an arrangement that deviates from the normal case of attributing criminal liability, both in terms of the conduct principle and the blame principle. There are different arrangements for derivative liability of partners in different legal systems. 35. In other words, this is liability due to negligence. Incidentally, when the accomplice to the offense was aware of the possibility of a different or additional offense occurring, then according to the Supreme Court ruling, this is not derivative liability, and liability must be attributed to him according to partnership law. See CrimA 4389/93 Mordechai v. State of Israel 50(3) PD 239 (1996) (Isr.). 36. Both in terms of promoting commission of the offense and in terms of its actual commission. 37. Supra note 2, at 53.
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