Sexual Violence in Indian-Occupied Kashmir

The Indian state of Jammu and Kashmir has witnessed conflict between Indian security forces and insurgents demanding independence or accession to Pakistan. Following the crackdown against militants in 1989, there have been increased reports of sexual violence at the hands of the Indian army, police, and paramilitary forces. Rape is used as a means of targeting women who the security forces accuse of being militant sympathisers. More specifically, the rape of women in Kashmir by Indian security forces is an attempt to punish and humiliate the community.

In this article, I will focus on the role of Indian security forces in using counter-terrorism measures as an excuse to commit acts of sexual violence against Kashmiri women and highlight the system of impunity that protects them from accountability. I will consider policies under International Humanitarian Law (IHL) and International Human Rights Law (IHRL) that prohibit such acts of violence and offer protection to survivors. Lastly, I will discuss the potential policies that could be adopted by the international community to enforce strict action against sexual violence in Kashmir and demand India’s compliance with international law.

How are counter-terrorism operations leading to increased instances of sexual violence?

In 1994, a Human Rights Watch report on Jammu and Kashmir highlighted cases of sexual misconduct by Indian Police, military, and intelligence agencies occurring primarily as a result of “counter-insurgency operations”.^[1] According to the report, rape most often occurs during crackdowns and search operations during which men are taken out for identification while security forces search their homes. Women also fall victim to sexual violence during attacks on civilians following militant ambushes. The women who are raped are accused of providing militants with food and shelter. In other cases, the officers do not state any reason for their attack on women, and rape occurs simply because women are present in areas where cordon-and-search operations occur. Human Rights Watch states that security forces use rape during counter-insurgency operations as a weapon to punish, intimidate, and humiliate communities.

On the other hand, counter-terrorist operations also provoke sexual violence against Kashmiri women when insurgent groups retaliate.^[2] Women are raped by militant forces as a way of punishing families that are believed to be informers to Indian security forces or suspected of opposing the militants in any capacity. The abduction and subsequent rape of women after their family members are murdered by militant groups is also a common occurrence.

In both cases, survivors are reluctant to report their stories because of intimidation and a threat of retribution from both security forces and insurgent groups. In instances where cases of sexual violence by the security forces are reported, the survivors are either forced to take their case back or the police fail to produce useful results.

System of Impunity

Section 5 of the Armed Forces (Special Powers) Act (AFSPA) states that “No prosecution, suit or other legal proceeding shall be instituted, except with the previous sanction of the Central Government, against any person in respect of anything done or purported to be done in exercise of the powers conferred by this Act”.^[3]Under this section, Army officials are offered a form of immunity where military personnel cannot be prosecuted unless there is a prior sanction for investigation by the central government.^[4] Unfortunately, the Indian government rarely investigate cases of rape by security forces in Kashmir. It is reported by “Kashmir Media Service” that security forces raped 11,224 women between 1989 and 2020, including those as young as 11 years and as old as 60-year women.^[5] When cases are investigated and accused officers are found guilty, punishments are negligible in that the maximum punishment handed out is suspension, while the details of the case are never made public.^[6] Furthermore, The Public Safety Act (PSA) of 1978 enables authorities to detain Kashmiris for two years without trial.^[7] It gives security forces total discretion in detentions, which could occur simply for trying to resist sexual violence or attempting to report such incidents.^[8] A person who is detained under the PSA does not have the right to move a bail application before a criminal court, and cannot access any lawyer to represent him or her before the detaining authority.^[9] In this manner, PSA ensures that victims of sexual violence do not have access to justice. Thus, a system of impunity arises where security forces escape accountability as a result of the Indian government’s failure to effectively prosecute and punish their criminal acts.

The Kunan-Poshpora case

In 1991, officers of the 4 Rajputana Rifles of the Indian Army entered the two villages Kunan and Poshpora in north Kashmir’s Kupwara district during a counter-terrorist operation and allegedly gang-raped at least 23 women (while some estimates place the number of victims at around 40).^[10] The exact details of the mass rape remain shrouded in conflicting narratives from mishandled inquiries into the matter over the years.^[11]The Indian army has consistently rejected any involvement in the incident.

The Kunan-Poshpora case exemplifies the protection enjoyed by Indian security forces after committing atrocious acts of sexual violence. It highlights not only the violations of human rights in Kashmir committed under the pretext of “counter-terrorism” but also the systematic impunity offered to security forces by the Indian government at all levels within Kashmir.

India’s violations of clauses regulating sexual violence under international humanitarian law (IHL) and international human rights law (IHRL)

1. International Humanitarian Law (IHL)
   The government of India has ratified the Geneva Conventions of 1949, where Common Article 3 prohibits the murder, torture, and ill-treatment of non-combatants by both government and militant forces. The situation in Kashmir is an occupation and therefore can be classified as an international armed conflict to which all the Geneva Conventions and customary international humanitarian law applies. Geneva Convention IV Article 27 states, “Women must be especially protected against any attack on their honor, particularly against rape, enforced prostitution, or any form of indecent assault”. Additional Protocol II of 1977 outlaws “outrages upon personal dignity, in particular humiliating treatment, rape, enforced prostitution, and any form of indecent assault.” Since India has not ratified the Additional Protocols and Kashmir does not qualify as a non-international armed conflict, Protocol II does not apply to the situation, however, it is relevant in that it can be used to interpret the “outrages upon personal dignity” clause of Common Article 3.^[12] Commentary of the International Committee of the Red Cross on this clause reaffirms that Common Article 3 aims to strengthen the protections offered to women who may be victims of rape, enforced prostitution, or indecent assault.^[13]
   
2. International Human Rights Law (IHRL)
   Moreover, India is a party to international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Rights of Persons with Disabilities (CRPD). The International Court of Justice (ICJ) in the “Legality of Threat of the Use of Nuclear Weapons” Advisory Opinions (1996) states that the “protection of the ICCPR does not cease in times of war”, ensuring that human rights treaties are applicable during armed conflict as well. As a result, India has an obligation to prevent instances of sexual violence against women and to protect the rights of survivors of sexual violence or abuse in Kashmir.
   Article 4 of the Declaration on the Elimination of Violence against Women states that governments should pursue by all appropriate means and without delay should exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the state or by private persons.^[14] Article 12 of the ICESCR guarantees the right to the highest attainable standard of health, including sexual and reproductive health and mental health.^[15] This means that a State is obligated to protect women’s rights with regard to their health in cases of gender-based violence. Article 7 of the ICCPR states that no person can be subjected to “cruel, inhuman or degrading treatment.”^[16]According to the UN Human Rights Committee, the article is aimed to protect both the dignity and physical and mental integrity of the individual.^[17]
   
3. Violations of International Law by India
   Under IHL and IHRL, India has violated international laws that direct States to protect their citizens from instances of sexual violence. Section 6 of AFSPA grants complete immunity to military personnel from prosecution for human rights violations unless the Indian government grants a prior permission or “sanction” to prosecute. In nearly three decades that the law has been in force in Jammu and Kashmir, there has not been a single prosecution of armed forces personnel granted by the central government.^[18] In the case of Kunan-Poshpora, upon the inquiry of Deputy Commissioner Yasin in March 1991, the army launched an internal inquiry which relied on investigation by the military personnel involved.^[19] Medical examinations of some victims who came forward showed signs of forced penetration.^[20] The investigation concluded that the victims had made false allegations, because it was believed the medical examinations were made many days after the incident and that the penetration could be a result of other sexual activities.^[21] Since allegations against the military can only be investigated by the military, it is difficult to contest their consistent procedural failings.
   
   The protection offered to security forces has created a precedent of impunity for sexual offenders, resulting in an alarming number of sexual violence cases against Kashmiri women. Since the presence of security forces has increased substantially following the start of counter-insurgency operations in 1989, these protections pose a threat to the physical and mental wellbeing of Kashmiri citizens. As a result, provisions of AFSPA and PSA that allow security forces to escape fundamental accountability for human rights offences, especially sexual offences, stand in direct violation of both IHL and IHRL.

How can we improve India’s compliance with international law on sexual violence?

The sexual exploitation of women and girls in Kashmir continues under a system of impunity. A study by Médecins Sans Frontières (Doctors Without Borders) concluded in 2006 that Kashmiri women have one of the highest number of reported cases for sexual violence in conflict zones.^[22] Given the high number of human rights violations, the international community should collectively create diplomatic pressure on the Indian government to ensure compliance with international law. The 2019 updated report on Kashmir by the Office of the High Commissioner for Human Rights (OHCHR) urged the Human Rights Council to establish a commission of inquiry to conduct a comprehensive independent international investigation into allegations of human rights violations in Kashmir.^[23]

The report by OHCHR (2018 and 2019) and Human Rights Watch (1993) made important recommendations to the Indian government for internal changes in accordance with International law that remain relevant today. The Indian government must:

1. Urgently repeal the Armed Forces (Jammu and Kashmir) Special Powers Act (1990) and immediately remove the requirement for prior central government permission to prosecute security forces personnel accused of human rights violations.^[24]
2. Amend the Jammu and Kashmir Public Safety Act, 1978 to ensure its compliance with international human rights law.^[25]
3. Amend the Anti-Terrorism Act to bring it in line with international human rights standards, including by incorporating human rights safeguards.^[26]
4. Investigate and prosecute all cases of sexual violence allegedly perpetrated by state and non-state actors, and provide reparations to victims.
5. Remove cases of sexual violence from military jurisdiction and place them under the jurisdiction of federal and provincial courts.^[27]
6. Institute an effective monitoring mechanism that oversees the implementation of laws dealing with sexual violence against women and children in Kashmir, including failures in police accountability.^[28]
7. Authorize the presence of female security officers in all cordon and search operations.
8. Monitor and support Kashmir’s provisions for appropriate support services, including psychological counselling, legal aid, emergency medical care, and reproductive and sexual health services responsive to the effects of sexual violence.^[29]
9. Better train and sensitize military officers, police officers, judicial officials, and medical professionals on the proper handling of cases of gender-based violence.^[30]
10. Introduce explicit prohibitions against rape in training programs for all enlisted officers in the police, paramilitary and military as a clear message that rape is no longer tolerated by the state.^[31]
11. Provide security to medical workers who examine rape victims. Medical practitioners should be encouraged to give testimony and physical evidence in court with regard to rape and other forms of sexual and physical abuse.^[32]

Conclusion

As the conflict in Kashmir continues, little has been done by central authorities to change their methods of counter-insurgency operations to prevent violations of human rights and humanitarian law in Kashmir. Few efforts have been made to amend laws that offer Indian security forces immunity from the prosecution of rape and other forms of sexual offences. When confronted with allegations and evidence of rape, authorities attempt to reduce the integrity of the witnesses and discredit their testimonies. Preventing rape and sexual violence requires non-negotiable, comprehensive, and hard demands that target structural discriminations against women at all levels of the justice system. India’s ratification of IHL and IHRL is unlikely to bring about substantial changes unless there is a collective effort and collaboration between locals, the government of Jammu and Kashmir, the federal government of India, and the international community to provide the women of Kashmir the justice they deserve.

References

[1] “Rape in Kashmir.” Human Rights Watch, May 1993.

[2] Ibid.

[3] “National Implementation of IHL – the Armed Forces Act (Special Powers) Act, 1958.” Icrc.org, 2013.

[4] Omar, M. “26 Years After Kunan Poshpora, Army Still Enjoys Immunity For Sexual Violence.” The Wire, February 23, 2017.

[5] Hussain, Mehmood, and Sumara Mehmood. “Genocide in Kashmir and the United Nations Failure to Invoke Responsibility to Protect (R2P): Causes and Consequences.” Muslim World Journal of Human Rights, vol. 18, no. 1, 18 Feb. 2021, pp. 55–77.

[6] Pervez, Ayesha. “Sexual Violence and Culture of Impunity in Kashmir: Need for a Paradigm Shift?” Economic and Political Weekly, vol. 49, no. 10, 2014, pp. 10–13. JSTOR

[7] Escobar, Lark. “The Mass Rape of Poshpura & Transitional Justice Possibilities in Indian Kashmir – Praxis.” Praxis: The Fletcher Journal of Human Security, 28 Jan. 2022.

[8] Ibid.

[9] Kaunain Sheriff M. “Explained: What Is Jammu and Kashmir’s Public Safety Act?” The Indian Express, The Indian Express, 17 Sept. 2019.

[10] Saha, Abhishek. “Kunan Poshpora: A Forgotten Mass-Rape Case of 2 Kashmir Villages.” Hindustan Times, Hindustan Times, 8 Feb 2016.

[11] Ibid.

[12] “Rape in Kashmir.” Human Rights Watch, May 1993.

[13] Ibid.

[14] UN Declaration on the Elimination of Violence against Women, adopted on December 20, 1993, UN Doc A/RES/48/104.

[15] UN Committee on Economic, Social and Cultural Rights, General Comment 14, The right to the highest attainable standard of health (Twenty-second session, 2000), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 (1994), para. 35

[16] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1996, G.A. Res. 2200A (XX1), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by India on April 10, 1979, art. 7.

[17] UN Human Rights Committee, General Comment 20 (Forty-fourth session, 1992), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI\GEN\1\Rev.1 (1994), para. 2.

[18] “Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019” Office of the United Nations High Commissioner for Human Rights. 8 July 2019

[19] Escobar, Lark. “The Mass Rape of Poshpura & Transitional Justice Possibilities in Indian Kashmir – Praxis.” Praxis: The Fletcher Journal of Human Security, 28 Jan. 2022.

[20] “Rape in Kashmir.” Human Rights Watch, May 1993.

[21] Escobar, Lark. “The Mass Rape of Poshpura & Transitional Justice Possibilities in Indian Kashmir – Praxis.” Praxis: The Fletcher Journal of Human Security, 28 Jan. 2022.

[22] “Kashmir: Violence and Health.” Médecins Sans Frontières, Nov 2006.

[23] “Update of the Situation of Human Rights in Indian-Administered Kashmir and Pakistan-Administered Kashmir from May 2018 to April 2019” Office of the United Nations High Commissioner for Human Rights. 8 July 2019

[24] ibid.

[25] ibid.

[26] ibid.

[27] “Rape in Kashmir.” Human Rights Watch, May 1993.

[28] ibid.

[29] ibid.

[30] ibid.

[31] ibid.

[32] ibid.