By Aaliya Anjum
10 October, 2007
Inspite of the fact that the
violations of human rights in Kashmir are in direct disregard of the
principles of international human rights and humanitarian law including
the Geneva Conventions and the protocols additional thereto, no attention
has been directed to address the issue at national and international
levels. An appropriate response is necessitated by the fact that the
violations of human rights in Kashmir's armed conflict have had a direct
bearing on its civilian population. Civilian victims, mostly women and
children, often outnumber casualties among the combatants . But women
suffer in both differing and complex forms. They suffer directly by
being subject to rape, molestation and torture and others whose relations
are subject to atrocities suffer because of being related to them. It
therefore becomes imperative to try and analyse the impact that the
past 18 years of conflict have had on Kashmiri women. More so, because
there needs to be an awareness and understanding that armed conflict
and its impact affect women physically, psychologically, socially and
economically . The International Committee of The Red Cross (ICRC)
places the impact of armed conflict on women under eight themes: Displacement,
security, sexual violence, missing persons, detention, access to medicare,
access to food and other assistance and protection under international
humanitarian law .
A study done by Medecins
Sans Frontieres in mid 2005 reveals that Kashmiri women are among the
worst sufferers of sexual violence in the world. It further mentions
that since the beginning of the armed struggle in Kashmir in 1989, sexual
violence has been routinely perpetrated on Kashmiri women, with 11.6
per cent of respondents saying they were victims of sexual abuse. Interestingly,
the figure is much higher than that of Sierra Leone, Sri Lanka and Chechnya.
The state home department has no specific data in this regard for the
last 17 years. This serves as a telling comment on the plight of women
and on the indifferent attitude of the state towards addressing the
issue. Cases of rape and molestation abound in Kashmir and many go unreported
because of the fear of social stigma, and of reprisal by state agencies.
And even in those cases, where the victims manage to transcend these
fears and report the matter to police, they achieve little or no justice.
More often, police refuses to lodge an FIR against the troops.
In Kunan Poshpora, a small village in Kashmir, the soldiers of fourth
Rajputana Rifles allegedly raped about 30 women on the night of February
23, 1991, during a search operation while men were taken away from their
homes and interrogated. The ages of women raped ranged from 13 to 80
years. According to newspaper reports, on June 17,1994, troops of Rashtriya
Rifles accompanied by two officers Major Ramesh and Major Rajkumar entered
into village Hyhama and allegedly raped and molested seven women. In
another incident, troops raped a mentally ill old woman in her house
in Barbarshah in Srinagar on January 5, 1991. Medical reports confirmed
rape and locals lodged an FIR with the concerned police station, but
the police did no investigation. She later died in 1998 while the FIR
still awaits action from the state government. In another gruesome incident,
an army Major in Badra, Handwara, raped Aisha, a 29-year-old woman and
her 10-year-old daughter, Shabnum. These being just a few examples,
incidents like these are plenty in Kashmir and ironically pass unheeded
Due to immunity of troops
from prosecution and their own court martial proceedings, which are
far from being unbiased, they are left free to do as they please. Dr
Maiti, a professor of political science at Rurdwa University, West Bengal,
explains, "Rape continues to be a major instrument of Indian oppression
against the Kashmiri people while the majority of victims are civilians.
This concept stands fortified by a report of ICRC dated March 6, 2001,
where it has been mentioned that women are raped in order to humiliate,
frighten and defeat the enemy 'group' to which they belong. Rape in
a war is not merely a matter of chance; it is rather a question of power
and control, which is 'structured by male soldiers' notions of their
masculine privilege, by the strength of the military line of command
and by class and ethnic inequalities among women . One of the reasons
given by Radhika Coomaraswamy for sexual violence in armed conflict
is that violence against women may be directed towards the social group
of which she is a member because 'to rape a woman is to humiliate her
community'. Complex and combined emotions of hatred, superiority, vengeance
for real or imagined wrongs and national pride are engendered and deliberately
manipulated in armed conflict. For the men of the community, rape encapsulates
the totality of their defeat; they have failed to protect their women
. The Special Rapporteur appointed by the United Nations Commission
on Human Rights in former Yugoslavia termed rape as not only as an instrument
of war but as a method of ethnic cleansing intended to humiliate, shame,
degrade and terrify the entire ethnic group .
A study done by Medecins
Sans Frontieres in mid 2005 reveals that Kashmiri women are among the
worst sufferers of sexual violence in the world. Interestingly, the
figure is much higher than that of Sierra Leone, Sri Lanka and Chechnya
The Geneva Convention related to The Protection of Civilian Persons
In Times Of War, 1949 and Additional Protocols of 1977 provide that
women shall especially be protected against humiliating and degrading
treatment; rape, enforced prostitution or any form of indecent assault
. The Vienna Declaration and Programme Of Action adopted by the World
Conference on Human Rights in Situations of Armed Conflict states that
violations of human rights of women in situations of armed conflict
are violations of the fundamental principles of international human
rights and humanitarian law. Even though states are under an obligation
to make grave breaches of Geneva Conventions and protocols additional
thereto subject to the jurisdiction of their own courts and punishable
by severe penalties. The domestic courts do not peruse the law laid
down under the said convention for rape trials in conflict areas like
Kashmir. However, rape is not explicitly listed as a grave breach of
Geneva Convention, although acts willfully committed and causing great
suffering or causing grave injury to body or health do constitute breaches.
The fact that rape has been
systematically committed against Kashmiri women and that justice has
not been delivered in these cases makes rape in Kashmir eligible for
an appropriate legal response at the international level. The state
has to be held for breach of its obligations under various relevant
treaties and customary international law.
The prosecution of individuals
alleged to have committed rape should be done by the international criminal
tribunal on the precedent of Nuremberg as the domestic courts and military
court-martials have failed to deliver justice in these matters and are
motivated by a state centric approach . The focus of the tribunal
should be to punish the wrongdoers, not on providing compensation and
support to the victim.
The International tribunals
are unique in that, they can be established during the continuation
of the conflict and therefore they are untainted by the notions of 'victors
justice'. Prosecutions must be brought against the alleged perpetrators
and those higher up in the chain of command .
Rape is a grave crime as
its consequences extend beyond the actual commission, often lasting
for the rest of the life of a woman . The social stigma associated
with rape renders a raped woman unmarriageable, deprived of respect
in the society and traumatised for the rest of her life. In some cases
women become unacceptable even to their own families. The necessity
to bring the perpetrators of rapes in Kashmir to justice can be understood
from the fact that parties to conflict often rape as a tactic of war
and terrorism .
Half-widows of the
Enforced disappearance is
one of the most harrowing consequences of the armed conflict in Kashmir.
During the last 18 years of conflict, the Association Of Parents Of
Disappeared Persons (APDP) , an organisation of the relatives of
people who have disappeared after custody, claims more than 10,000 people
have been subject to enforced disappearance by state agencies and were
mostly picked up by the troops. Of the disappeared persons, between
2000-2005 a majority were married males. Although men have been subject
to disappearance largely, but women have been adversely affected because
of being related to them as daughters, mothers, sisters and wives. In
the absence of any information about the whereabouts of the disappeared
men, their wives have acquired the title of ' half-widows'. These half-widows
apart from other relatives of disappeared persons are left without any
entitlement to land, homes, inheritance, social assistance and pensions.
Most of these women also suffer from harassment by
Fahmeeda Bano, 37, lives
in a remote Kashmir village of Kupwara and 14 years back the Indian
army picked up her husband. She has gone from pillar to post searching
for him but to no avail. She said, "If my husband is alive I want
to see him. I want authorities to tell me where he is. If he has been
killed let them hand over his body to me..."
The Indian government does
not provide any relief to half-widows before the expiry of seven years
from the date of disappearance. And even after the completion of seven
years from the date of disappearance, they get either a one-time grant
ranging from US$1,000 and US$2,000 or a monthly pension of US$10 .
Further, a half-widow cannot remarry until the expiration of seven years
from the date of disappearance of her husband whose whereabouts must
not be known in these seven years. In the meantime, the right to her
husband's property are often threatened. Some widows, who intend to
remarry, largely do not find men who are willing to marry them. A study
titled, 'Women And Children Under The Armed Conflict In Kashmir' done
by Prof A G Madhosh, a Kashmiri educationist and activist, reveals that
the migration of widows with their children resulted in a sudden break
in normal family life. Women had to assume the roles of breadwinners
for their families and the future of their children became insecure.
Every month the members of APDP gather for a sit-in-protest at Central
Park in Srinagar. Their continuous protests should have served as a
resonating alarm for the authorities, but they seem to have turned a
deaf ear to the woes of these people. Fahmeeda Bano, 37, lives in a
remote Kashmir village of Kupwara and 14 years back the Indian army
picked up her husband. She has gone from pillar to post searching for
him but to no avail. She said, "If my husband is alive I want to
see him. I want authorities to tell me where he is. If he has been killed
let them hand over his body to me. "
With killings, torture, rapes,
molestations, disappearances and detentions becoming the order of the
day in Kashmir, psychiatric disorders have seen a sharp increase post-1989.
In 1989, about 1,700 patients visited the valley's lone psychiatric
hospital and by the year 2003, the number had gone up to 48,000. Before
the onset of the armed struggle, certain disorders that were not known
to Kashmiris started showing a significant presence amongst the civilian
population. The Post Traumatic Stress Disorder (PSTD), one of the psychiatric
diseases, which was completely unrecognised before 1990 has witnessed
a major upsurge. Major Depressive Disorder (MDO) follows this. There
are other mental diseases like bipolar disorder, panic, phobia; general
anxiety and sleep disorders that have also shown four-fold increase
as told by Dr Arshad of the Psychiatric Diseases Hospital in Srinagar.
Substance Use Disorder or drug addiction and suicidal tendencies has
been another repercussion of the ongoing conflict in Kashmir. Dr Arshad
further added that the patients who come to seek help are largely in
the productive age group of 25-30 years . Dr Mushtaq Marghoob, a
leading psychiatrist of the valley states that women bear the brunt
of every tragedy. They have to support the family after the death of
their husbands, fathers, sons or brothers. Dr Arshad further adds that
women form a major part of the patients who are suffering from PSTD
(almost 50 per cent). For women whose husbands have died, psychotherapy
has failed to produce desired results.
A woman from Batmaloo, Srinagar
saw the body of her brother who was killed in custody by soldiers of
the Indian army, the body had been split open and his heart had been
taken out. The shock rendered her in a state of disturbed bereavement
and PSTD ever since. According to Dr Marghoob, women have become increasingly
suicidal and are resorting to sleeping pills, injections and inhalations
. Even though a large number of people visit the Psychiatric Diseases
Hospital in Srinagar, however, this is only a tip of the iceberg as
large numbers of patients visit hospitals at the district and sub-district
Nearly every person, particularly
women, suffer from general anxiety and the uncertainty pertaining to
the security of their family members. This always keep them in a state
of unrest and anxiety. Even in their houses people are harassed, beaten
up or taken into custody by the troops. The fact that the situation
doesn't seem to get any better, doesn't promise a better mental state
of the civilian population, especially women, in Kashmir.
In past few years, murders,
rapes, torture, custodial deaths, and enforced disappearances have witnessed
an upsurge, but the response of the state in addressing these atrocities
doesn't promise hope for justice. The official figures of these atrocities
are far too less than the reported ones. The factual human rights situation
in Kashmir has always been rendered invisible by the national security
concerns of the government and the state centric approach of the Indian
media . Living in this environment of hopelessness, there are people
like Parveena who are still willing to give a tough fight to powers-that-be.
Parveena says, "I am determined to fight till my last breath, with
or without anyone's support". People like Parveena need to be lauded
for their determination.
It is being constantly projected
in the mainstream media that the situation in Kashmir has improved,
but the ever-increasing rate of human rights violations in the valley
tell us a different story. People continue to suffer while the much-hyped
slogan of Prime Minister Manmohan Singh proclaiming 'Zero Tolerance'
towards human rights abuse stares him hard in the face!
1. UN Fourth World Conference
On Women, Beijing-China, September 1995.
2. UN Commission on Human
Rights; Sub Commission on the Promotion and Protection Of Human Rights,
Fifty Fifth Session, Item 6(a) of the provisional agenda.
3. ICRC, March 6, 2001.
4. Christine Chinkin; Rape
and Sexual Abuse of Women in International Law. European Journal of
5. R Coomaraswamy; 'Of Kali
Born; Violence and the Law in Sri Lanka'; In M Schuler (ed), Freedom
Of Violence; Women's Strategies from Around The World.
6. Tadeusz Mazowiecki, Special
Rapporteur of the Commission on Human Rights, Report pursuant to Commission
Resolution 1992/S-1/1/ 0f 14 August 1992, E/CN/4/1993/50/10 February
7. UN Fourth World Conference
On Women; Beijing-China; Strategic Objective 144(C); Governments should
fully respect norms of International Humanitarian Law in armed conflicts
and take all measures required for the protection of women and children
in particular against rape, forced prostitution and any other form of
8. Strategic Objective 143(C),
UN 4th World Conference On Women; Beijing-China, Sept 1995: Governments
should take action to investigate and punish members of the police,
security and armed forces and others who perpetrate acts of violence
against women, violations of humanitarian law and violations of the
human rights of women in situations of armed conflict.
9. In ' Re Yamashita' 327
USI, 6 Section 340 (United States Supreme Court 1946) the accused was
charged that as commander of the armed forces of Japan…he unlawfully
disregarded and failed to discharge his duty as commander to control
the operations of the members of his command, permitting them to commit
brutal atrocities. Although Yamashita was not physically present during
the commission of the atrocities, he was found guilty.
9. The Supreme Court of India
has ruled in a case that rape is a graver crime than murder as murder
kills a person only once, while rape kills a woman again and again.
10. United Nations Fourth
World Conference on Women; Beijing-China, September 1995; Action For
Equality, Development and Peace.
11. Parveena Ahanger is the
chairperson of APDP. Her son, Javed Ahmad Ahanger (then 16), was picked
up by troops on August 18, 1990. Since then she has not heard of him.
She says, " We are fighting to obtain just some information of
the whereabouts of our disappeared relatives. If they are alive, where
are they? If they are dead, their bod ies should be handed over to us.
12. The widows have to suffer
severely due to economic constraints and despite being entitled to government
ex-gratis relief; they have to pay the concerned officers to get their
grant-study done by Prof A G Madhosh (Kashmiri educationist).
13. Haroon Mirani, 'Kashmir's
Half Widows Struggle For Fuller Life.'
14. Asia Jeelani, Turmoil
16. John T, Contemporary
South East Asia.
The author is a lawyer, HRLN,
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