23rd February commemorated as Kashmiri Women`s Resistance Day

International Desk: Systematic rape has been used in various armed conflicts throughout the history. Mass rapes were committed during the armed conflicts in Bosnia and Herzegovina, Cambodia, Uganda, Rwanda, and Vietnam. Women and girls are particularly targeted by the use of sexual violence, including as a tactic of war to humiliate, dominate, instill fear in, disperse and/or forcibly relocate civilian members of a community or ethnic group.

Women in Indian Illegally Occupied Jammu and Kashmir (IIJOK) have also suffered rape, torture and death under the occupation of the Indian forces.  Indian armed and security forces have committed systematic mass rapes and sexual assaults against the civilian population in IIOJK.

Since 1989, India has been using sexual violence and rape as warfare strategy to terrorize and intimidate people of IIJOK. The study conducted by Médecins Sans Frontières revealed that IIOJK has one of the highest rates of sexual violence in the world.  The report stated that 11.6% of interviewees said they had been victims of sexual violence and one in seven had witnessed a rape.  In furtherance of the State policy, Indian security and armed forces have ganged raped thousands of women in IIOJK in the disguise of infamous ‘cordon and search’ operations. Reportedly, Indian forces have raped more than 11,000 women in IIOJK. In the period between 1 January 1990 to 30 June 1992 alone, 2,839 women were raped, 4,258 women were sexually incapacitated through torture by Indian forces in IIOJK.

Kunan-Poshpora Incident

One of the worst incidents of sexual violence occurred in 1991. Thirty years ago, on the night of 23rd February 1991, 125 personnel of the Fourth Rajputana Rifles of the Indian Army cordoned off two remote villages of Kunan and Poshpora in Kupwara District in IIOJK. During the “cordon and search operation” Indian armed forces systematically gang raped almost 100  women.  The two villages were barricaded for four days.

The mass rape in two far-flung villages of Kupwara district was pre-planned and was a part of the series of similar mass rape incidents. Reports suggest that hundreds of soldiers, many of whom were drunk, arrived at the village at around 11pm. The men were taken from their houses and tortured during the night and interrogated about Kashmiri militant activity, while large numbers of women were raped at gunpoint in their homes.  The magistrate who first reported the incident wrote that the members of the security forces “turned into beasts” and “gagged the mouths of the victims and committed forced gang rape against their will and consent”. 

The victims included women between the ages of 13 and 80, many of whom have since died waiting for justice to be done.  As a result of the gang rapes, at least eighteen survivors had to have their uteruses removed. Many mothers were raped in front of their daughters and little girls in front of their mothers. A pregnant woman gave birth to a child a few days after being raped and the child was born with fractured arms.  Another 21-year-old pregnant woman was raped by seven soldiers. Another woman was assaulted by six soldiers, and they raped her “one by one”, while her five-year-old son was forced to watch. 

A week after the mass rape took place, the entire area encompassing both villages was again cordoned and none of the residents could come out to report the ghastly incident.  Later, the delay in reporting the incident was used by IndianState machinery against the victims.

Impunity of Indian Forces

•           On 5 March 1991, the villagers complained about the incident to the local magistrate, Mr. S.M. Yasin.

•           On 8th March 1991, the first Information report (FIR) of the incident was filed. However, the police did nothing and no investigation was carried out.

•           On 17th March 1991, a fact-finding delegation, led by Mufti Baha-ud-Din Farooqi, Chief Justice of the High Court of IIOJK, visited Kunan Poshpora. The delegation interviewed 53 women victims of rape.  According to the delegation’s report, villagers claimed that a police investigation into the event had never commenced because the officer assigned to the case, Assistant Superintendent Dilbaugh Singh, was on leave.  Farooqi stated that “He had never seen a case in which normal investigative procedures were ignored as they were in this one.” Later, in July, Dilbagh Singh was transferred to another station without ever carrying out the investigation.

•           In 2005, the victims and the villagers approached the Jammu and KashmirState Human Rights Commission.

•           In 2012, Jammu and KashmirState Human Rights Commission found all allegations of the mass rape to be true, and ordered the government of IIOJK to pay compensation to the forty women identified to be the main victims.

•           In 2013, 50 Kashmiri women filed a petition in the Jammu & Kashmir High Court to reopen the case. The High Court issued a notice to the State (IIOJK) government, but the response was allowed to be delayed as much as possible. The High Court then demoted the status of the case and sent it to Kupwara`s District Court for closure.

•           In June 2013, the District Court of Kupwara ordered further investigation and gave three months to the government to submit its report on the investigation into the allegations but no report was submitted even after the lapse of a year.

•           In 2014, the team of petitioners then approached the High Court again, and this time the case was referred to a division bench of two judges. The divisional bench of the High Court took up the Jammu and KashmirState Human Rights Commission report and decreed “the government should explore the possibilities of payment of compensation within three weeks.” The court further ordered to complete the investigation to provide answers. This was the first time that members of the higher judiciary acknowledged that the heinous crime did indeed take place. India has shown apathy to the victims of the rape victims and in 2014, during a hearing of the Kunan Poshpor case, the army counsel called the statements of victims as stereotyped and ‘like recorded rotten stereo sounds that play rape all over again’.

•           In 2015, the Indian Army filed a petition in the High Court asking for a stay order against the ordered investigation into the mass rapes. In its petition, the Indian Army stated that an officer is empowered and authorized to examine, enquire and try personnel under his control in accordance with the Army Act, in respect of the allegation attributed to them while on active service in IIOJK.  In an ex parte proceeding, the Single Bench of the High Court ordered the stay on the investigation and issued a notice. 

•           Indian Army then moved to the Supreme Court of India to order us to withdraw the case altogether.

•           In 2016, human rights activists filed a petition in the Supreme Court against the `stay order` on the investigation.

Till date, the case is pending before the Kupwara District Court, the Srinagar High Court and in the registry of the Indian Supreme Court. India has created a system of institutional impunity for its armed forces, and sexual violence and other atrocities are legitimized by the Armed Forces (Special Powers) Act.

Indian Armed Forces: Habitual Offender

Nothing has changed in IIOJK, 30 years after the Kunan Poshpora incident, in February 2021 three Indian armed forces personnel in uniform, tried to abduct a 9-year-old girl, after raping her. Indian troops abused the minor girl and dragged her into their vehicle when she along with her sister was working in her garden at Chewa in Ajas area in the Bandipora district of IIOJK. On raising hue and cry by her sister, the locals rushed to the spot to rescue the minor victim. In the meantime, the troops managed to escape, leaving their vehicle with the locals.

The sexual violence problem is chronic and systematic in the Indian army, as reflected by the statement of a retired Major General of the Indian Army. In November 2019, during a televised debate, the Indian Major General S P Sinha (retd) screamed, “Maut ke badle maut (death for death), balatkar ke badle balatkar (rape for rape). 

In the late 1980s, Indian Peace Keeping Forces (IPKF), committed several crimes and atrocities against Tamil population in Sri Lanka. After the Indo-Sri Lankan Peace Accord (July 1987), IPKF committed Valvettithurai massacre, and killed 64 Tamil civilians, and burned 123 houses, 45 shops, and 123 boats and nets in the span of just two days.  IPKF also raped many Tamil girls and women. In December 1987 a local magistrate reportedly found IPKF personnel guilty in seven cases of rape, and in January 1988 an Indian court-martial sentenced four Indian soldiers to only one year in prison for raping Tamil women.

India’s so-called counter-insurgency operations in the Northeast have resulted in widespread human rights abuses including extra-judicial killing, torture, forced disappearances, mass rape, detention without trial, and draconian restrictions on freedom of assembly, expression and movement.  The Indian armed forces were protected under the Armed Forces Special Powers Act and they used their immunity to commit mass rapes in Northeastern States.  The systematic impunity for Indian armed forces has made it impossible to even report these crimes as police often refuse to register FIR against armed forces involved in heinous crimes against women in the Northeastern States.

In 2015, the UN report stated that Indians in the peacekeeping operations were involved in three substantiated cases of sexual exploitation between 2010 and 2013.

Violation of International Law

Rape and other forms of sexual violence are prohibited under International Law.  This rule is a norm of customary international law and is applicable in both international and non-international armed conflicts.

Armed conflict not of an international character: While common Article 3 of the Geneva Conventions does not explicitly mention rape or other forms of sexual violence, it prohibits “violence to life and person” including cruel treatment and torture and “outrages upon personal dignity” during non-international armed conflict.

Similarly, Article 4 (2) (e) of the Additional Protocol-I to the Geneva Conventions prohibits the “outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault”.

The expressions “outrages upon personal dignity” and “any form of indecent assault” refer to any form of sexual violence.

International armed conflict: Article 27 of the Geneva Convention IV explicitly prohibits wartime rape and forced prostitution during international armed conflicts. It states “(w)omen shall be especially protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault.”

Similarly, Article 75 (1) of the Additional Protocols II to the Geneva Conventions reinforced the prohibition and states that “outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault”.

In 1998, the International Criminal Tribunal for Rwanda (ICTR) in its landmark decisions defined genocidal rape as a form of genocide under international law. In the trial of Jean-Paul Akayesu, the mayor of Taba Commune in Rwanda, the Trial Chamber held that “sexual assault formed an integral part of the process of destroying the Tutsi ethnic group and that the rape was systematic and had been perpetrated against Tutsi women only, manifesting the specific intent required for those acts to constitute genocide.”

The United Nations Security Council (UNSC) adopted resolution 1820, which noted that “rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide”.

War Crime: According to Article 8 (2) (b) (xxii) of the Rome Statute of the International Criminal Court “committing rape, sexual slavery, enforced prostitution, forced pregnancy” or “any other form of sexual violence also constituting a grave breach of the Geneva Conventions” amounts to war crimes.

Crimes Against Humanity: According to Article 7 (1) (g) of the Rome Statute of the International Criminal Court “Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity” amount to crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population. Crimes against humanity can be committed outside the context of the conflict.

Article 7 of the International Covenant on Civil and Political Rights, 1966 states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”

Rape and other acts of sexual violence constitute torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women also includes “the right to equal protection according to humanitarian norms in times of international or internal armed conflict”.

No need to mention that every year since 2014, 23rd February is commemorated as Kashmiri Women`s Resistance Day, inspired by the struggles of the survivors of mass rape and torture in the twin villages of Kunan and Poshpora, on the night of 23rd February 1990.