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Moving from Impunity to Accountability

Women’s Bodies, Identity, and Conflict-related Sexual Violence in Kashmir

Alliya Anjum (anjurizvi@gmail.com) teaches at O P Jindal Global University, Sonipat, Haryana.

In the aftermath of the Balkan Wars and the Rwandan genocide, international legal policy on sexual violence in conflicts saw a major shift towards stronger international accountability mechanisms. The establishment of criminal tribunals and the development of the conflict-related sexual violence paradigm were some of the institutional and policy changes that occurred as a result, with both acknowledging that women are targeted in conflicts not only because of their gender, but also due to their ethnic identity. The applicability of the conflict-related sexual violence paradigm to the Kashmir case is explored, thereby underscoring the bigger questions regarding the state’s responsiveness towards such human rights abuse, and its commitment towards ending impunity for sexual violence in conflicts.

Kashmir is one of the most militarised conflict sites in the world, with more than half a million troops populating its streets and borders (Kashmir Times 2013). The heavy presence of troops and a legal apparatus that provides them immunity signifies that “militarisation” and “militarism” pervade the state’s response to conflict in the region. Militarisation in its plain sense can mean “expansion of the relative size of some integral part, scope or mission of the armed forces”—visible either in military spending, or through the number of soldiers on the streets (Bowman 2002: 19).1 Militarism, on the other hand, is a system of thinking where military “institutions and ways” are valued more than “civilian life”—where life includes its inextricable signifiers, like dignity, freedom, and health (Lutz 2002: 723). This hierarchical valuation in Kashmir’s case, for instance, is most visible in the operation of immunity laws and the resultant impunity accorded to the armed forces for the smooth functioning of ostensible counter-insurgency operations and the maintenance of law and order (Rediff 2011). Though war is the ultimate manifestation of militarism, militarisation is a wider process that permeates “institutions, values and practices” of the state (Sjoberg 2013: 96). The deeply penetrating and far-reaching effects of militarisation and militarism, on even the everyday lives of civilians, include processes by which “military practices extend into the civilian arena” (Peterson and Runyan 1999: 258), for example, military-sponsored civilian activities like educational tours.2 A conceptual extension of this analysis of militarism helps locate its pervasiveness in militarised societies such as Kashmir, where the distinctions between combatant and non-combatant, and war and peace, soon begin to dissolve into each other, making rights a natural casualty.3

The association between militarisation and denial of rights, thus, has remained an enduring feature of conflicts across time. As Richard Falk (1977: 231) points out, where state power is maintained through military control, a regime insensitive to human rights compliance is a natural outcome. The processes of militarisation and conflict at the same time are not gender-neutral phenomena, in that they inherently rely on heteronormative ideas of masculinity and femininity. The conventional, culturally constructed view of this position is that men, the “just warriors,” make war, and women, as “beautiful souls,” provide “succor and compassion” (Elshtain 1987: 4) and promote peace. This, however, is challenged by studies which indicate that be it peace, political conflict, or war-making, these cannot run without women’s participation and support (Gonzalez and Kampwirth 2001). Relatedly, the memory archives of 20th-century conflicts also make it amply clear that the experiences of men and women in conflicts are gendered in nature. In other words, women experience conflicts differently as compared to men. Sexual violence against women, for instance, has been a common, if not unavoidable feature of conflicts (Chinkin 1994), including in Kashmir. Even though men too are subject to sexual violence in conflicts, the rationale for men being the targets of such violence may differ from that used for women. Cynthia Cockburn (2013: 434) explains this difference in the following words:

A woman who is raped in war is raped as a woman, a despised category. A man who is raped is assaulted as a man, to reduce him to the status of a mere woman, and thus destroy his masculine self-respect. (emphasis added)

In Kashmir’s case, survivor testimonies have indicated that “interrogation techniques” by the Indian armed forces have included electric shocks to their genitals, forcible performance of sexual acts on others, and rape, thus confirming that men too have been the targets of sexual violence (Hoenig and Singh 2014).4 These instances of male sexual violence in Kashmir, however, are not as well-documented as those of violence against women, owing to heightened stigma and shame. At the same time, there is comparatively significant reportage available on instances of sexual violence, including rapes, against women largely committed by the Indian armed forces, since the beginning of the armed insurgency in Kashmir in the late 1980s. Apart from gendered experiences, the wars of the 20th century—for example, in the Balkans and Rwanda—have provided us with historical knowledge that men and women become targets of sexual violence because of their ethnic or national identity too. This is why, systematic rape in the context of war was categorised as a “war weapon” (Kohn 1994: 199)—a tactical tool that is used not only to harm and dominate individuals, but also their communities.

Against the background of these preceding conceptual frameworks, this article aims to analyse sexual violence against women in Kashmir in light of the law and policy developments of the 20th century, particularly those that have occurred in the post-Balkan Wars period. The first part of the article aims to examine how sexual violence in Kashmir is significant, particularly in view of the changed and strengthened human rights policy on sexual violence in conflicts after the Balkan Wars. The second part, while referring to instances of sexual violence against women in Kashmir in general, engages with the drivers of conflict-related sexual violence against women and their application in the Kashmir context. The third part highlights, how, because of a distinct import of sexual violence in conflict zones, the state’s international human rights obligations are implicated.

From Regrettable Excess to Crime against Humanity

Sexual violence in conflict zones is a long-existing phenomenon. An all too well-known, yet partial list that is still fresh in popular memory includes the close to 60,000 rapes of Bosnian women in the former Yugoslavia (1992–95), 40,000 in Liberia (1989–2003), 2,00,000 in the Democratic Republic of the Congo (since 1998), and a staggering 1,00,000–2,50,000 rapes committed just within three months of the Rwandan genocide in 1994 (UN Outreach Programme on the Rwandan Genocide 2018). Rape, however, has often been used as a euphemism for sexual violence in conflict. At the same time, historical evidence from victim accounts illuminates how women suffer such violence in forms including and other than rape, for example, sexual slavery, forced pregnancy and sexual humiliation among others (Leiby 2009). This enhanced understanding of the nature of conflict violence that women are subject to, has led to gradual law and policy developments. For instance, the United Nations (UN) acknowledges this broader strain and context of violence as “Conflict-related Sexual Violence,” (CRSV) rather than confining it to the commonly used, “wartime rape.”5 The term “wartime rape” refers to the context of an “armed conflict,” which is a legal term for war—whether declared and acknowledged or not. This may involve fighting between states, or between states and armed groups (Non-International Armed Conflicts [NIACs]). Jurisprudential tests and legal thresholds are used in order to ascertain that the latter variety of conflicts are NIACs and, thus, will involve application of international laws of war (read expanded protections and accountability for violations of rights of civilians including women) (Prosecutor v Dusko Tadic 1999; Vite 2009).6

It is, therefore, not surprising that states, including India, try to avoid conflicts being categorised as NIACs. In order to elude international scrutiny and accountability, they would rather refer to such conflicts as an internal strife at best. In Kashmir’s case, for instance, the Government of India’s declared position at the UN is that no international or NIAC exists (Ministry of Women and Child Development 2013). This contradicts the existence of heavy militarisation in Kashmir and the continuation of special security laws that grant extensive powers and immunity from prosecution to the armed forces. Nonetheless, the prevention and protection of CRSV involves broader state responsibility for upholding human rights, as it pertains to a strain of sexual violence that is “directly or indirectly linked to a conflict,” which need not be an “armed conflict” in the aforementioned technical sense (UN Secretary General 2017). In any case, as has been argued elsewhere, a conflict or a “conflict zone” is also a spatial or political concept that is capable of many revisionist possibilities and interdisciplinary interpretations, and may not necessarily be confined to legal technicalities (Shalhoub-Kevorkian 2009).

Hence, the protective ambit of the concept of CRSV seeks to include prevention and prohibition of “incidents or patterns” of sexual violence, including “rape,” or any other form of sexual violence of comparable gravity against women, men or children, occurring in “conflict or post-conflict settings or situations of political strife” (UN Secretary General 2010). This highlights that human rights policy does not mandate legal and or strategic interventions by the state until such violence escalates to a certain (grave) magnitude; and an incidence–conflict nexus is what sets this strain of violence apart, say, from sexual violence ordinarily suffered by women qua women alone, that is, rape as an exercise of masculine power and dominance over women. The incidence–conflict nexus is visible in the profile of the perpetrator (state or non-state actor) and the survivor/victim’s membership of a group, often within “a climate of impunity” to make it context-specific (read conflict-related) sexual violence, and not mindless male sexual aggression run amok (UN Secretary General 2010). Therefore, experiential knowledge of sexualised violence against women in conflicts clarifies that they are targeted not only because they are women, but because they are certain women—it becomes an act of intersectional discrimination implicating gender, ethnic, and national, etc, identities—a cause for international human rights law concern (Pitaway and Bartolomei 2001: 27).

Before the conflicts of the 1990s—like the Balkan Wars—sexual violence, unlike other forms of conflict violence, such as murder or torture, was often dismissed as a by-product of wartime activity, as “collateral damage” (Brownmiller 1975: 31). It was frequently downplayed as a private (sexual) act of soldiers (the boys-will-be-boys argument), or was being outrightly denied (this never happened). For example, Peruvian army commanders in their counter-insurgency operations against the Shining Path called it a “necessary excess” (Brownmiller 1975: 31). Radovan Karadizc—now convicted, among other crimes, for the Srebrenica massacre by the International Criminal Tribunal for the Former Yugoslavia—is quoted to have dismissingly stated that of the few cases of rapes by Serb soldiers that he knows of, they were “not organised, but [were] done by psychopaths” (Iacobelli 2009: 270). With reference to an incident in Kashmir, an Indian army officer was quoted as stating in a similar, flippant vein: “A soldier conducting an operation at the dead of the night is unlikely to think of rape when he is not even certain if he will return alive” (Asia Watch and Physicians for Human Rights 1993: 17). It was soon realised that it is this acceptance, dismissal, or condoning of rape as an inevitable aspect of conflicts that lends itself to be utilised as a “weapon of war” in an armed conflict context, and as a political tool no less in conflict situations other than that of the armed variety (Cockburn 2013: 441). Therefore, this dismissiveness and resultant lack of accountability for violation of rights had to be addressed by gender and ethnic identity sensitive policy changes.

The events of the Balkan Wars and the Rwandan genocide in the 1990s, therefore, in particular, redefined the way sexual violence against women in conflicts has come to be understood. The carefully garnered evidence in the former Yugoslavia, for example, revealed that Bosnian women were raped as a project of ethnic cleansing and humiliation, and as a “weapon of war” (Russell-Brown 2003: 364). Among other motivations, women were raped so that they become impregnated with Serb babies in furtherance of the Serb national project of creating a Greater Serbia (Russell-Brown 2003: 364). The rapes of Tutsi women in Rwanda were systematically carried out as an act of genocide to breed out the Tutsi people in the country (Alvarez 1998–99: 359).7 Due to media attention received by the horrors of this violence, coupled with feminist lobbying, conflict rape, when committed systematically in the course of armed conflicts, came to be recognised as a crime against humanity, war crime, and also as an act of genocide before international courts (Park 2007: 13).8 These developments changed the way sexualised violence and rape in conflicts is perceived worldwide. Given this heightened understanding that ethnic and national identity is often central to the violence suffered by women in conflicts to now refer to this violence as a regrettable by-product of wartime, or conflicts, or as an isolated event of aggressive male sexuality is to speak of it cursorily. Understanding sexual violence against women in Kashmir has to be placed within this broader continuum of historical, legal, and policy transformations.

Kashmir in the CRSV Framework

A brief sketch of the incidence, nature and extent of sexual violence in Kashmir will help place things in perspective in relation to the preceding discussion. Since the outbreak of the conflict in the late 1980s, such violence has regularly been reported. Of the conflict-related rapes reported from Kashmir, an overwhelming number indict the Indian armed forces.9 Rapes by militants, although rare, have also been reported; however, as has been noted elsewhere, the armed forces as the representatives of the state violate human rights, while militants violate law (Varadarajan 1993: 5). Unsurprisingly, an accurate estimation of the number of rapes in Kashmir is difficult to obtain. But, the information available indicates that the practice is regular. A 2006 Médecins Sans Frontières study on rapes in Kashmir found that the number of people witnessing or hearing of a rape between 1989 and 1990 was far higher than that in high-intensity conflicts like in Sierra Leone or Sri Lanka (Médecins Sans Frontières 2006). Eighteen documented cases of rapes by Indian armed forces ranging from the Jamir-Qadeem, Sopore case in 1990, to the Gujjardora-Manzgam case of 2011 have been recorded (Kazi 2014: 14).10 The most frequently cited examples, however, remain the mass rape of Kunan Poshpora, the Handwara and the Mubeena Gani rape cases. In the Kunan Poshpora village, during a cordon and search operation, about 800 soldiers of the Indian army gang-raped between 20 and 60 women. Ages of survivors ranged from 13 to 60, including a young pregnant woman, who later delivered a baby with a fractured arm (Batool et al 2016: 82; Jha 2013).In 2004, in a village in Handwara, a mother and her 10-year-old daughter were raped by a major of the Rashtriya Rifles (Peer 2016: 200–02). Mubeena Gani, a young bride, was raped by a group of Border Security Force (BSF) personnel on 16 May 1990, the evening of her wedding, when she was on her way to her husband’s house with the groom’s entourage (Varadarajan and Joshi 2002).

These instances provide an indication of the prevalence, nature and scale of the rapes in Kashmir. However, these parameters, too, have to be placed within the CRSV paradigm mentioned above to understand their salience in a particular context. It has been argued that prevalence and scale (quantitative information) of rapes and sexual violence may no longer be the sole compelling methodological driver for provoking human rights interventions at the state or international levels. It is now thought that even isolated incidents of sexual violence (quantitative information) when complemented with contextual factors (qualitative information), such as conflict history, politics, and motivation of perpetrators, will warrant legal action and protection, even at the international level (Boesten 2017: 506). Scale assumes significance when sexual violence occurs in mass numbers during armed conflicts, as part of a systematic policy, and can be prosecuted as crimes against humanity or war crimes (Meron 1993: 424). Otherwise, even sporadic, regular incidents of sexual violence necessitate stricter enforcement of human rights guarantees, better preventative measures, and stringent accountability mechanisms and outcomes, if the victim and perpetrator profiles remain unchanged within a charged political context, and the incidence–conflict nexus is established, as described above (Boesten 2017).

Women’s Bodies as Symbols of the Nation

Even though sexual violence is a gendered violation committed against women qua women, the evidence from the conflicts since the 1990s brought to cognisance that certain women suffer sexual violence by certain men for particular purposes (MacKinnon 1993: 64–65). In the case of Bosnia and Rwanda, this kind of violence was inflicted for annihilation of the group to which the women belonged, forced impregnation and genocidal rape being the modus operandi for achieving this end. In other conflicts, where mass, systematic rape as a weapon of war may be absent, sexual violence becomes a tool of achieving political goals, namely control and repression.

Scholars have tried to explore the rationale behind the deployment of sexual violence as a tool to further political ends in conflicts. Ruth Seifert (1996: 39) observes that, in many cultures, women are viewed as an embodiment of the nation, in which case, the rape of the women of a community is meant to be the “symbolic rape” of their entire community. This symbolic association of a community’s women with their nation’s essence is used for a specific function in a militarised imaginary: For instance, it has been argued that the position of a woman as a mother is a dominant symbolic imagery that becomes visible in conflict situations (Mookherjee 2008: 36). In other words, the woman is “encoded” as the “collective womb” of the nation (Raven-Roberts 2013: 50). That being so, the “physical and emotional destruction” of women of a nation, functions as a vicarious “rape of the body of that community” which is employed in undermining the morale and strength of the community (Seifert 1996). This sense of “violation” of the community is compounded by the physical, social, and psychological effects the violence may have within the particularity of a social setting.

The detailed impact of this in Kashmir’s context can be garnered by some of these examples. A report by the Centre for Policy Analysis (CPA) on the Kunan Poshpora case highlights the general and long-term social and psychological implications of sexual violence for women in Kashmir (Kashmir Times 2018). The report highlights that women from Kunan Poshpora have faced strained relations in their martial homes and ostracisation from a deeply patriarchal society, which treats women as an embodiment of family “honour,” and violation thereof amounts to the loss of such honour. In a context where loss of virginity and consensual or forced sex outside of marriage is stigmatised, expectedly, unmarried women from these villages, who have, or are presumed to have suffered sexual violence, cannot find suitors after the incident of a mass rape. The report also details that these women suffer from trauma, physical ailments and many have had to undergo hysterectomies as a consequence of the violence (Kashmir Times 2018). By losing their capability to provide reproductive labour, which is one of their primary functions in a patriarchal imaginary, an additional variety of isolation from the community is foisted upon them. In another instance, in the case of Mubeena Gani mentioned above, even though her husband, resisting social pressures, did not abandon her after the rape, the couple were ostracised by their relatives and villagers who were ostensibly influenced by ideas of purity and pollution before and after rape (Peer 2010: 149).11 Often, thus, the isolation of the survivor or her family begins within close kinship and community ties, where “honor takes precedence over victimhood” (Bhasin Jamwal 2017). The social, psychological, and physical consequences of this violence, therefore, result in the “shattering” of its victims and “driving a wedge through the community” (MacKinnon 1993: 66), thereby fulfilling the militaristic goals of control and domination of a community by weakening its constituents.

Women also become targets of sexual violence in being primarily identified as sympathisers of dissidents and, hence, “subversives” by association or through lending support. Cynthia Enloe (1990: 1) refers to this category of militarised rapes as “national security rape”—a form of sexualised violence inflicted to punish and humiliate ‘‘subversive” women for what are perceived as threats to national security. This may be due to their direct or indirect support or participation in a “subversive” movement, or through their relationship with “subversive” men. A Human Rights Watch report detailed these types of rapes in Kashmir where women were targeted for being militant sympathisers, or became targets in reprisal attacks after a militant ambush (Asia Watch and Physicians for Human Rights 1993: 1). In this form of violence, therefore, sexual violence is inflicted on women in their primary capacity as sympathisers and, hence, “subversives” by actual or perceived association.

Additionally, as Catherine MacKinnon (2006: 223) has argued, rape in conflicts is also used as a “humiliation rite” by perpetrators for the men on the opposing side, by appealing to their failure to “protect” their women.In this manner, women’s bodies are encrypted as vessels through which masculine messages of “rape as exercise of power” by the perpetrator are transmitted to the men on the opposing side. Although this can be true for rapes of women by armed forces in any set of circumstances, certain survivor accounts make this argument particularly cogent. For instance, during personal interviews of rape survivors in Kashmir, many of the respondents stated that they had been “raped in presence of their own families, their own husbands, and their own children” (Kazi 2014: 14). Rape as a spectacle, particularly assumes the character of a “humiliation rite” since women are stereotypically associated with a “need for protection” and men with providing that protection. Such associations underlie sexual violence and rape being used in this manner as a tool of domination (Enloe 1990). Relatedly, the inability to “rescue” and “protect” the women evokes a sense of “emasculation” (in masculinity terms) in the men of a community. A reservoir of emasculated men, through this and other forms of everyday humiliation in a conflict zone, may tend to have long-term societal effects. For example, it has been argued that this can be a contributing factor behind increased domestic violence against women within that region (Amnesty International 2004: 18). Such a community’s aggravated, and helpless men are able to project a sense of power where they are most able to—in their homes.

The emphasis on women being targeted for sexual violence because of their national or ethnic identity may not necessarily mean that women lose their subjectivity as women, that is, crimes against them in their capacity as women may not become secondary to crimes against their group. Rather, this parameter—that of their identity—has to be an additional feature in calibrating responses to sexual violence. Rhonda Copelon (1995: 197) proposes that “Surfacing gender,” that is, acknowledging the importance of their gender alongside the significance of their identity in theorising sexual violence against women in conflicts may help to take care of subjectivity as a concern.

Immunity, Impunity, and Elusive Justice in Kashmir

The juridical backdrop against which sexual violence takes place in Kashmir has been referred to as a “legal civil war”—a situation where the operation of immunity laws, like the Armed Forces (Special Powers) Act, 1990, enforces an indefinite “state of exception” or emergency, and has an impact on everyday lives and processes of justice (Duschinski 2009: 692). This means that due to the legal immunities afforded to the armed forces, any reporting and redress of sexual abuse is stonewalled. One of the key contributory factors behind this lack of access to justice is that any prosecution of armed forces by civilian courts involves seeking executive sanctions, which are never granted (Amnesty International 2015: 27). Usually, in situations of extreme public pressure, court martial proceedings may be initiated, as was done in the Handwara rape case, for instance. However, these have been severely criticised for falling short of international standards of fair trial and natural justice. Additionally, the process is inaccessible and opaque for victims, and has been condemned for treating perpetrators too leniently (Gazala Peer 2016). Pertinently, in the Handwara case, the Supreme Court had ruled that court martials could not be subject to the superintendence of the high court, hence reinforcing their nature as impervious and inscrutable forms of justice (Union of India and Others v Major A Hussain: 1998).

Within such a constraining legal apparatus and a judicial process that is unresponsive to restoration of rights and accountability, a survey of the state’s response to prominent cases of sexual violence in Kashmir becomes important. These will help illustrate the applicability of the CRSV paradigm in the Kashmir context. In the case of the Kunan Poshpora rapes, the state’s initial response was to deny that the incident had ever occurred. The inquiry by the Press Council of India, a non-judicial body, three months after the rapes, exonerated the army, by discrediting victim testimonies, finding contradictions in their statements, or downplaying what had happened to them, by stating that these “abrasions are common among Kashmiris” (Press Council of India 1991: 146). They termed their narratives as “tutored” and “coerced,” while calling the incident a “massive hoax” (Press Council of India 1991: 146). Independent judicial enquiries observed that normal investigative procedures were ignored in this case, indicating the state’s active attempt to brush the incident under the rug (Noorani 1991). After reinvigorated efforts by Kashmiri women to revive the case, in 2011, the State Human Rights Commission ordered the reopening and investigation of the case, followed by a public interest litigation (PIL) in the Jammu and Kashmir (J&K) High Court asking for compensation to survivors and monitoring of the investigation (Masood 2014). Even though, in an unprecedented move, the high court ordered compensation, the Supreme Court has stayed further proceedings in the case as on date (Masood 2015). Similarly, because of the state’s efforts to thwart a fair investigative procedure in the rapes of Asia and Neelofer in Shopian, it has been termed as a cover-up (Fazili 2014). A Yale Law School (2009) report has also noted that despite litigants approaching courts against armed forces in cases including rape, not a single conviction has been achieved, spawning a culture of impunity for such and other forms of human rights abuse.

Given this impunity and the vulnerabilities of Kashmiri women to sexual violence in a charged political context in the ways described above, a redefinition of the concepts of “accountability” and “redress” needs to happen within a CRSV paradigm. This would involve a feminist redefinition of the concept of “security,” which requires the bringing about of an absence of military, economic, and sexual violence particular to women (Tickner 1992: 66). This position accommodates the broader concept of “human security” that emphasises guaranteeing freedoms, dignities, and “absence of fear” to individuals such that they can develop their potential fully (UN General Assembly 2012). A critical feminist understanding of “human security” also acknowledges intersectional identities of women involving their gender, race, ethnicity, class, etc—identities that underlie conflict violence against women (Hudson 2005). Considering these, it was thought important that women in conflict situations need special human rights protections, so that state behaviour and structures do not make it impossible for them to achieve the end of “developing their potential fully.” This is why Security Council Resolution 1325 was passed, which recognised the specific effects of war and conflict on women and called on states to take measures to prevent sexual violence, apply international human rights law, and end impunity in cases of sexual violence (UN Security Council 2000). These cannot happen unless structures of immunity, impunity, and denial continue to thrive. The CRSV paradigm also mandates that the rights of women to equal protection under laws and access to justice be ensured in a conflict setting. This is currently elusive in the absence of a comprehensive approach to ending impunity for CRSV (UN Security Council 2008). Besides, international legal policy acknowledges that when sexual violence in conflict is used against civilians, it impedes just resolutions to conflicts in the first place (UN Security Council 2010).

Furthermore, the institutional response to sexual violence in Kashmir also needs to be seen within the larger framework of the tripartite human rights obligations of the state: the responsibilities to “respect, protect and fulfil” (Office of the High Commissioner for Human Rights 2018). The obligation to “respect” means that states must refrain from interfering with or curtailing human rights. The obligation to “protect” requires states to protect individuals and groups against human rights abuses, committed either by its own representatives or by private actors. The obligation to “fulfil” means that states are mandated to take positive action to facilitate the enjoyment of basic human rights, including existence of robust institutions, and accountability mechanisms to ensure access to justice. When CRSV occurs in Kashmir and is followed by the lack of meaningful redressal mechanisms, these fundamental tripartite human rights obligations of the state towards the survivors remain unfulfilled. This is exacerbated by the fact that official apathy and even acquiescence is evident through certain recorded instances, for example, military authorities terming sexual violence by armed forces in Kashmir as a “regrettable excess,” or soldiers recorded to have acknowledged that they were ordered to rape (Kazi 2014: 29). This scenario seriously calls into question the current mechanisms of redress, as well as underscores the need for placing sexual violence in Kashmir within the perspective of global debates and transformations on human rights policy on CRSV, which treats both gender and national identity-based targeting of women as a matter of international concern.

Conclusions

Despite sexual violence being pervasive in conflicts, it had often been underplayed as an atrocity. At the most, it would be described as a personal act of soldiers. The law and policy transformations of the 20th century, however, have changed that. This portrayal is now not only considered narrow and depoliticised, but it is seen as ignoring how sexual violence can be and is deployed in conflict situations to fulfilling political goals. The learning from past conflicts has given rise to the CRSV paradigm, which encompasses this understanding and helps adequately evaluate institutional responses to such violence once it occurs. In the Kashmir case, hence, we need to call this violence by its rightful name, and gauge institutional responses within the paradigm. The fact that the state responds to such violence with de facto and de jure immunity, therefore, would go directly against the intent and directive of its mandate. As Brownmiller (1975: 31) has argued, men do not rape because they can, but because they are explicitly or implicitly encouraged to do so.

Notes

1 A more complex analysis of militarisation, however, understands it through its involvement of, and impact on, society and institutions. In that sense, it entails discursive and material processes through which societies prepare for war, including the “shaping of other institutions in synchrony with military goals.” See Lutz (2002).

2 For details of the military’s engagement in civilian life as an avowed policy of counter-insurgency operations in Kashmir, see Anant (2011).

3 For an understanding of how the lines between these concepts can blur, see the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, Section 4(a), and how its operation facilitates this. Any commissioned or non-commissioned officer: “if he is of the opinion that it is necessary so to do for the maintenance of public order, after giving such due warning as he may consider necessary, fire upon or otherwise use force, even to the causing of death, against any person who is acting in contravention of any law or order for the time being in force in the disturbed area.” Also see Human Rights Watch (2011).

4 In the Kashmiri lexicon, “interrogation” is often used as a euphemism for torture, due to its prevalence in questioning by the armed forces. For details, see Mathur (2016: 16–20).

5 “Conflict-related sexual violence” and “Sexual violence” will be used interchangeably hereinafter.

6 Sylvian Vite (2009) finds that one of the tests for declaring a conflict as an NIAC is the “collective nature of fighting” or the state being forced to use its army as the police is being unable to deal with the situation “on their own.”

7 See particularly the judgment in the Akayesu case where rape was adjudged as a weapon of war and an act of genocide when carried out systematically against a community in an armed conflict. For details, see Alvarez (1998–99).

8 For these and other related changes brought about by international tribunals established after the Bosnia and Rwanda conflicts, see Park (2007).

9 In reply to a question in the legislative assembly, the then Chief Minister of Jammu and Kashmir (J&K), Omar Abdullah, placed the registered number of rapes in J&K between 1989 and 2013 at 5,125. The number of rapes by state forces far outnumbered rapes by insurgents. Besides, abuse by armed forces as representatives of a state invites international legal obligations, like enforcement of human rights, which are not enforceable against insurgents, who violate law, not human rights (Abbas 2013).

10 For the whole list of cases, see Kazi (2014).

11 Basharat Peer provides comprehensive details of Mubeena Gani’s rape, as well as her life afterwards.

References

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Updated On : 8th Dec, 2018

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