Sexual Violence as a Practice of War: Implications for the Investigation and Prosecution of Atrocity Crimes

We analyze the implications of recent social science on sexual violence by armed actors for the investigation and prosecution of atrocity crimes. We focus on a fundamental challenge that both rape and other forms of sexual violence may be committed frequently by members of an armed organization without being ordered or authorized as policy, which we term a practice. When frequent, it is driven by gender norms held by combatants and commanders alike. Attention to these social dynamics enhances prosecutors' gender analysis and investigation of an armed conflict, illuminating the relationships between different acts of violence. Charging sexual violence that occurs as a practice calls for specific characterizations of the offense and type of responsibility. Because it features complicity, tolerance, and foreseeability, modes of liability such as aiding and abetting, command/superior responsibility, and joint criminal enterprise are most relevant.