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Wailing Woes

By Aaliya Anjum

10 October, 2007
Combat Law

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 [1]. 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 [2]. 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 [3].

Rape cases

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 for.

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 [4]. 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 [5]. 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 [6].

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 [7]. 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 [8]. 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 [9].

Rape is a grave crime as its consequences extend beyond the actual commission, often lasting for the rest of the life of a woman [10]. 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 [11].

Half-widows of the Valley

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) [12], 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
the troops.

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 [13]. 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. [14]"

Psychological Impact

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 [15]. 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 [16]. 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 levels.

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 [17]. 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 International Law.

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 1993.

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 indecent assault.

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 And Trauma.

15. Ibid

16. John T, Contemporary South East Asia.

The author is a lawyer, HRLN, Srinagar, J&K


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