Although the first cases of rape and forced prostitution on the national level were prosecuted in the 1940s, whereby the United War Crimes Commission guided national jurisdictions, it took a while before such prosecutions again received more attention and implementation. Today, CRSV is, more and more, also prosecuted in national courts, such as military tribunals, hybrid tribunals and purely domestic (specialized) chambers, although it is still rather limited.

Yet, there is generally a lack of similar national definitions of these crimes. Given that it is the ICC’s goal, from the perspective of the complementarity principle, to have the crimes prosecuted in the national courts, it is imperative for states parties to the Rome Statute to implement the Court’s provisions on CRSV in their national legislation. This enables the advanced ICC legislation on CRSV to have the intended global effect, beyond the Court’s immediate jurisdiction. However, since implementing legislation is not mandatory for states parties, let alone non-states parties, few have actually enacted implementing legislation and even fewer have enacted legislation in conformity with the Rome Statute (some states enact legislation copying verbatim the CRSV crimes; some states only partly copy the crimes; while other states do not include CRSV crimes at all).

States which are not parties to the Rome Statute should also incorporate serious international crimes in their national legislation as a matter of customary international law (e.g. being a signatory to treaties such as the Genocide Convention and Geneva Conventions and additional protocols), but again such laws are the exception.

Nevertheless, countries prosecute international crimes (genocide, war crimes, crimes against humanity) more and more so on the basis of the principle of universal jurisdiction. This legal principle is based on the idea that international crimes are of such a serious nature that they constitute an attack on all people and that the fight against impunity for those responsible for these crimes knows no geographical boundaries. Under this principle, States have the possibility (and sometimes even the obligation) to prosecute people accused of international crimes found on their sovereign land – wherever the crimes were committed and whatever the nationality of the perpetrators and the victims. As highlighted by the NGO TRIAL International (2022): “After centuries of almost compete invisibility and neglect, sexual crimes – such as rape, forced sterilization and nudity, sexual slavery – are now increasingly documented and prosecuted. For example, in 2021, several cases related to universal jurisdiction included convictions for sexual crimes, as seen in the verdicts against Syrian Colonel Anwar Raslan in Germany and Liberian warlord Alieu Kosiah in Switzerland.”

As a now established legal principle, with a recognized contribution to the fight against impunity, universal jurisdiction does not yet seem as effective in practice in regard to the prosecution of sexual violence, according to TRIAL International. Out of the 125 charges of international crimes in the year 2021 (spanning 60 cases across 16 jurisdictions), only 17 addressed conflict-related sexual and gender-based violence. 

Finally, where good prohibitions on CRSV are completely lacking or not applied, recourse can still be taken to (less suitable) legislation, such as domestic penal codes prohibiting rape and sexual assault.

The United Nations Team of Experts on the Rule of Law and Sexual Violence in Conflict (UN Team of Experts) was created by Security Council Resolution 1888 (2009) “to assist national authorities in strengthening the rule of law, with the aim of ensuring criminal accountability for perpetrators of conflict-related sexual violence. This resolution recognizes that conflict-related sexual violence is a threat to international peace and security, and that Member States affected by conflict need assistance to address impunity in order to prevent and deter future violations. The Team is the only dedicated Security Council mandated mechanism to provide this type of support on a global basis.” The UN Team of Experts has been/is working in countries such as the Central African Republic, South Sudan, Colombia, Democratic Republic of the Congo, Guinea, and Iraq. For example, In South Sudan, the UN Team of Experts “continues to work with UNMISS [United Nations Mission in South Sudan] and the United Nations country team to assist the armed forces and the police to develop and implement action plans on preventing and responding to sexual violence in conflict. The Team will also continue to support efforts to hold perpetrators of conflict-related sexual violence accountable for their crimes.” In 2020, the UN Team of Experts in cooperation with the Journal of International Criminal Justice devoted a full special issue to the topic of “justice and accountability for sexual violence in conflict: progress and challenges in national efforts to address impunity.” In 2021-2022 this initiative and topic was followed up by the “Digital Dialogue Series” organized by the UN Team of Experts and others, in which some important issues concerning the national prosecution of CRSV were given extra attention by experts, practitioners, and academics in the field.

Over the past years, more progress has been made in the prosecution of CRSV on the national level which can be seen in the increase of cases in which CRSV was part of the charges and convictions. This is a result of the strong commitment of numerous actors trying to make national prosecution of CRSV a priority, including civil society organisations (e.g. TRIAL International, Civitas Maxima, Wayamo Foundation), enforcement and justice actors, the UN Team of Experts, Justice Rapid Response, etc. This is a good development as it is exactly the national jurisdictions where most cases can and should be tried, closer to home where victims and survivors live.

Despite the progress, sexual violence is still too rarely investigated and prosecuted on the national level. According to TRIAL International, in the case of universal jurisdiction cases, “this can be explained by several factors, including the fact that these crimes are often not integrated into investigative strategies and, when they are prosecuted, they have often been qualified as acts of torture. However, this legal qualification of sexual violence as acts of torture fails to fully reflect the implications of such violence as both a weapon of war and a deeply harmful social tactic which aims to weaken the social fabric of vulnerable communities. In addition, it should be noted that the testimonies of the victims are key to prosecuting these crimes. However, the risk of adding to the victims’ trauma and the stigmatization to which they expose themselves by testifying illustrate the need for specific training of judicial professionals to conduct these interviews.”

To conclude, in addition to the more formal justice mechanisms that can be found on the national level, one can also ask whether CRSV could be dealt with before the more traditionally inspired justice mechanisms, such as found in Sierra Leone, Uganda and Rwanda. For example, the “Mato Oput” in Uganda helps to bring victims and perpetrators together with the aim to promote reconciliation and restoration of relationships and social harmony, and involves no criminal prosecution. It is, however, questionable whether such a mechanism (depending on its structure) can deal with mass atrocity crimes, including CRSV.

Below follows several cases before national jurisdictions in which CRSV was successfully prosecuted:

Guatemala (Sepur Zarco case)

In the Sepur Zarco case, two former military members were accused of committing acts of sexual violence, sexual slavery and domestic slavery near a military outpost in Sepur Zarco during the civil war in Guatemala. According to Claudia Martin and Susana SáCouto (2020): “In a landmark verdict issued in February 2016, a Guatemalan court convicted the two accused, marking the first time a Guatemalan court has convicted former military members for acts of sexual violence committed in the context of the country’s civil war, and the first instance of a domestic court prosecuting sexual slavery as an international crime. In acknowledging that these acts amounted to grave crimes, the Sepur Zarco verdict changed the narrative about sexual violence in Guatemala’s conflict. Up until then – as in other conflicts in the region and beyond – sexual violence had not been recognized as a separate crime, equivalent to other crimes committed during the conflict, for which perpetrators could be held accountable.”

DRC (Kavumu case)

About the Kavumu case, Daniele Perissi and Karen Naimer (2020) said that: “the Military Court of South Kivu found that the accused were part of an armed group, controlled by provincial lawmaker Frédéric Batumike, and together they were responsible for the rape of over 40 young girls over a three-year period. After a long and complex process, in December 2017, a mobile military court convicted 11 militia members, including the parliamentarian, of rape as a crime against humanity and sentenced them to life. In July 2018, the High Military Court confirmed the verdict.”

Belgium (universal jurisdiction cases)

In Belgium, quite a number of universal jurisdiction cases have taken place. For example, currently two alleged former Interahamwe militia members during the genocide against the Tutsi in Rwanda in 1994 – Ernest Gakwaya and Emmanuel Nkunduwimye – will be on trial for rape as genocide and war crimes on the basis of the universal jurisdiction principle. They were arrested in Belgium in 2011. The case is still pending trial.

Rwanda (7,000 cases before gacaca courts)

In Rwanda, around 7,000 cases of sexual violence committed during the genocide against the Tutsi in Rwanda in 1994 were prosecuted before the gacaca courts during the years 2008-2009. These cases were transferred from the regular courts to the gacaca to expedite proceedings and for victims to receive some justice. Gacaca already existed pre-1994 and was used to deal with mostly family disputes within the village by the village elder. Post-1994 it was transformed to deal with the legacy of the genocide, and grounded in legal laws on crimes, and rules of procedure and evidence. Around 17,000 gacaca judges in 1,900 gacaca courts tried these cases and received training on the legal and psychological aspects of these crimes beforehand. Sexual violence was recognised as a category 1 crime, i.e. among the most serious crimes with life imprisonment as a sanction. Rwanda is one of the few, if not only, country where sexual violence as an international crime has been prosecuted on such a large scale.