Domesticating International Sexual Violence Crimes in National Legal Systems

Victims and survivors of conflict-related sexual violence have the right to access justice wherever they live. A legal framework is necessary to exercise those rights.

PJI drafted Model Legislative Provisions and Legislative Guidance on the Investigation and Prosecution of Conflict-Related Sexual Violence (Model Legislative Provisions) under the auspices of the United Nations Secretary General’s Special Representative on Sexual Violence in Conflict (SRSG SVC), Ms. Pramila Patten, and they were published on June 18, 2021. PJI looks forward to working with the SRSG SVC’s office and the Inter-Parliamentary Union (IPU) on the global rollout of these model provisions, which will make a victim-centred approach to accountability possible for a wider variety of sexual violence crimes, and closer to home.

These Model Legislative Provisions represent the highest standard of criminal law and procedure, a robust legal and procedural framework in compliance with international norms and obligations. Drawn from a broad array of national legislation from 28 states in the Global North and Global South, the Model Legislative Provisions incorporate and go beyond the provisions of the Rome Statute, incorporating provisions emerging from, and consistent with, customary international law.

This new tool aims to assist parliamentarians and legislators in enacting or amending legislation on conflict-related sexual violence in line with international norms and standards to bring survivor-centred justice, as well as supporting national jurisdictions in overcoming obstacles to ensuring accountability for conflict related sexual violence. The Model Legislative Provisions benefited from input from several UN entities through a peer review process.

Victims and survivors deserve justice close to home; justice which involves and includes them; justice which empowers rather than sacrifices them; justice which honours their courage and respects their constraints;  justice which considers their needs as a core consideration rather than an afterthought; justice which uplifts them rather than further victimising them; justice which paves the path for other victims to come forward; justice which is accessible, tangible, visible, and transformative. 

These Model Legislative Provisions and Guidance can help make these aspirations a reality.

Designed to achieve the best possible results for victims and survivors of conflict-related sexual violence, wherever they live

Every survivor or victim of conflict-related sexual violence has the right to have their best interests given primary consideration, while safeguarding the rights of the accused. The best interest of the survivor or victim includes the ability to make their own informed choices wherever possible throughout the justice process. Thus, the Model Legislative Provisions incorporate procedural provisions that provide robust opportunities for participation by survivors and victims in prosecution.  

The Legislative Guidance and Commentary provide explanations as to the basis of each of the model provisions and note where they significantly diverge from existing codes and developed jurisprudence, and, more importantly, why.     

The Model Legislative Provisions, along with their Legislative Guidance and Commentary, are meant to be a starting point for legislators and societies undergoing legislative reforms. They are designed to be modified and adapted to reflect civil, common law, hybrid, or other legal systems. States are encouraged to enact even more progressive and inclusive provisions than those proposed.

No legislative reform process would be complete without consultation with civil society, including women and girls, and especially including survivors or victims of conflict-related sexual violence. Civil society and survivors or victims can assist legislators in adapting these Model Legislative Provisions to their specific context and experiences. Any legislative reform process on conflict-related sexual violence should allow the opportunity for a country’s citizenry to participate meaningfully in laws that impact them and indeed that consultation process can increase trust between the government and its citizens in areas impacted by conflict.

Adopting legal provisions based on these models will allow for prosecution of the fullest range of conflict-related sexual violence crimes while at the same time serving survivors or victims of conflict-related sexual violence in the most empowering and respectful way possible. When meeting both goals is not possible, a survivor-centric practice demands that the latter value take precedence.

Grounded in meticulous, wide-ranging research

The Model Legislative Provisions on the Investigation and Prosecution of Conflict-Related Sexual Violence commenced with research and analysis of domestic criminal and procedural codes from a range of national and international courts and tribunals. It was informed by survivors of sexual violence, and other serious international crimes (including those who have participated in litigation against their perpetrators), as well as the expertise of academics and established practitioners in the areas of conflict-related sexual violence, international criminal law, and victim or survivor centred litigation.

PJI’s Legal Team studied the relevant national criminal and procedural provisions from 28 states representing a non-exhaustive but nonetheless wide range of legal traditions and geographic locations. Analysis aimed at identifying different trends in criminalising sexual violence and international crimes in national jurisdictions, and more specifically at identifying the legal provisions allowing for prosecution of the fullest range of sexual violence crimes while serving and empowering victims or survivors of conflict-related sexual violence most effectively. The most protective and innovative provisions, found scattered across multiple states and jurisdictions, provided a foundation for many of the Model Legislative Provisions. 

The Model Legislative Provisions draw deeply from this research, as well as from other relevant national and international sources, in particular those reflecting recent jurisprudential and doctrinal developments and those that inform and identify widely recognized standards, normative principles, and good practices with respect to the empowerment and protection of survivors, victims, and witnesses in justice processes.

Guided by core principles

PJI crafted the Model Legislative Provisionswith a view toward the following guiding principles:

  1. The Model Legislative Provisions adopt a victim and survivor-centred approach, meaning they prioritise the rights, needs, wishes, participation, and best interests of the victim or survivor of sexual violence;
  2. The Model Legislative Provisions integrate international human rights law norms and standards, including the rights of victims or survivors of gross violations of international human rights law and serious violations of international humanitarian law and the rights of the accused to due process and a fair trial;
  3. The Model Legislative Provisions draw on comparative and international law to identify widely recognised standards, normative principles, and good practices;
  4. The Model Legislative Provisions reflect the need to accommodate the specificities of national legislation and judicial procedures, the legal, social, economic, cultural and geographical conditions of each state and the various main legal traditions (common law, civil law, hybrid legal systems, etc);
  5. The Model Legislative Provisions pay special attention to those provisions whose implementation requires legislation and to key issues related to victims, survivors and witnesses of conflict-related sexual violence crimes; and
  6. The Model Legislative Provisions are transparent where they depart significantly from existing codes and developed jurisprudence, proposing new models for assisting and protecting victims or survivors of conflict-related sexual violence in the justice process.
Informed by expertise from around the world

More than twenty external experts reviewed the draft of the Model Legislative Provisions. PJI is deeply indebted to these legislative experts, academics, survivors, prosecutors, investigators, victim lawyers and other justice practitioners representing diverse legal systems and geographical regions who provided invaluable comments and feedback: Abukar Hassan Ahmed, Cecilia Moran Santos, Evan Wallach, Gregory Gordon, Jacqueline Moudeina, John Ralston, Joseph Rikhof, Kate McIntosh, Kim Seelinger, Laurel Fletcher, Luc Walleyn, Niamh Hayes, Nushin Sarkarati, Olympia Bekou, Patricia Sellers, Reed Brody, Suleiman Bolaleh, Tyler Giannini, SEMA Survivor Coordinators from Sudan and Zimbabwe, Valerie Oosterveld, Zenaida Velasquez, and several others who opted to be anonymous.

Read the SRSV SVC’s Letter to External Experts acknowledging their crucial role.  

The Model Legislative Provisions on the Investigation and Prosecution on Conflict-Related Sexual Violence and its associated Legislative Guidance were drafted by I. Maxine Marcus, L. Kathleen Roberts, and Marie-Audrey Girard of Partners in Justice International, on behalf of Ms. Pramila Patten, Special Representative of the Secretary General on Sexual Violence in Conflict.

Download a copy of the Model Legislative Provisions here: OSRSG-SVC Model Legislative Provisions ENG

Read about the launch of the publication on June 18, 2021, and watch the recording!

Read about the announcement of the Model Legislation at the 10th Anniversary of the Mandate of the SRSG SVC in November 2019.