DND Special Report
India has become a rogue state by using rape as a subjugation tool against Kashmiris living under Indian occupation in Indian Occupied Jammu and Kashmir. In India, the state power has been transferred to extremist and radical elements, believe Human Rights bodies.
The fascist and brutal Indian forces have been using rape as a military tactic for the last few decades to punish and humiliate Kashmiris for fighting for their just and inalienable right of right to self-determination.
Kunan-Poshpora mass rape remains a blot on so-called Indian democracy where barbaric Indian soldiers raped around 100 women but despite the lapse of 32 years of the tragedy, the so-called human rights organizations and UN bodies failed to force Indians to take action against the beasts involved in the barbaric act.
Since January 1990, the north Indian state of Jammu and Kashmir has been the site of a brutal conflict between Indian security forces and armed Muslim insurgents demanding independence or accession to Pakistan. In its efforts to crush the militant movement, India’s central government has pursued a policy of repression in Kashmir which has resulted in massive human rights violations by the Indian army and paramilitary forces. Throughout the conflict, the security forces have deliberately targeted civilians, the majority of whom are widely believed to sympathize with the freedom fighters. Indian security forces, which include the army and two paramilitary forces, the Central Reserve Police Force (CRPF) and the Border Security Force (BSF) have assaulted civilians during search operations, tortured and summarily executed detainees in custody, and murdered civilians in reprisal attacks.
Since the government crackdown against freedom fighters in Kashmir began in earnest in January 1990, reports of rape by security personnel have become more frequent. Rape most often occurs during crackdowns and cordon-and-search operations during which men are held for identification in parks or schoolyards while security forces search their homes. In these situations, the security forces frequently engage in collective punishment against the civilian population, most frequently by beating or otherwise assaulting residents, and burning their homes. Rape is used as a means of targetting women whom the security forces accuse of being militant sympathizers; in raping them, the security forces are attempting to punish and humiliate the entire community.
Rape has also occurred frequently during reprisal attacks on civilians following militant ambushes. In these cases, any civilians who reside in the area become the target of retaliation. Anyone within range. These abuses have been documented in the Asia Watch/PHR report,
Male detainees have been subjected to various forms of sexual molestation. For more on this see Kashmir Under Siege. The significance of rape as a gender-specific form of abuse in Kashmir must be understood in the context of the subordinate status of women generally in South Asia, as in much of the rest of the world. Women who are the victims of rape are often stigmatized, and their testimony and integrity impugned. Social attitudes cast the woman, and not her attacker, as the guilty party pervade the judiciary, making rape cases difficult to prosecute and leaving women unwilling to press charges.
In some cases, women who have been raped have been accused of providing food or shelter to freedom fighters or have been ordered to identify their male relatives as freedom fighters. In other cases, the motivation for the abuse is not explicit. In many attacks, the selection of victims is seemingly arbitrary and the women, like other civilians assaulted or killed, are targeted simply because they happen to be in the wrong place at the wrong time. Since most cases of rape take place during cordon-and-search operations, just living in a certain area can put women at risk of rape.
Although Indian human rights groups and the international press have reported on the widespread use of rape by Indian security forces in Kashmir, the use of rape in the conflict has seldom attracted much international condemnation.
On December 5, 1992, Hirdai Nath Wanchoo, a retired trade unionist and one of the most prominent human rights activists in Kashmir, was shot dead by unidentified gunmen. H. N. Wanchoo had documented hundreds of cases of extrajudicial killings, and had prepared habeas corpus petitions on behalf of detainees held illegally in secret detention centers. On February 18, 1993, Dr. Farooq Ahmed Ashai, an orthopedic surgeon who had documented cases of torture and indiscriminate shootings, was shot by paramilitary troops who then delayed him from being taken promptly to a hospital for medical care. On March 31, 1993, Dr. Abdul Ahad Guru, a leading Kashmiri cardiologist, was abducted by unidentified gunmen and shot dead. Dr. Guru had been a leading member of the JKLF and an outspoken critic of the Indian government’s human rights record in Kashmir. He too had documented numerous cases of torture. Dr. Guru’s political position also made him a target for rival militant groups threatened by his participation in government.
Rape by Indian police is common throughout India; the victims are generally poor women and those from vulnerable low-caste and tribal minority groups. In some cases, women are taken into custody as suspects in petty crime or on more serious charges; in others, women are detained as hostages for relatives wanted in criminal or political cases; in still others, women are detained simply so that the police can extort a bribe to secure their release. In all of these cases, women in the custody of security forces are at risk of rape. Rape has also been widely reported during counter-insurgency operations elsewhere in India, particularly in Assam and other areas of conflict in northeastern India.10 In both conflict and non-conflict situations, the central element of rape by the security forces is power. Soldiers and police use rape as a weapon: to punish, intimidate, coerce, humiliate and degrade.
There are no reliable statistics on the number of rapes committed by security forces in Kashmir. Human rights groups have documented many cases since 1990, but because many of the incidents have occurred in remote villages, it is impossible to confirm any precise number. There can be no doubt that the use of rape is common and routinely goes unpunished.
Indian government authorities have rarely investigated charges of rape by security forces in Kashmir. To our knowledge, the prosecution of two soldiers for the rape of a Canadian tourist in October 1990 is the only case of criminal prosecution which the Indian government has made public. The soldiers were sentenced to prison terms, but as of April 1993, the soldiers remained in barracks and the case was on appeal.
While the government claimed that inquiries had been ordered into reports of rape and action taken against the guilty, the Indian authorities have not made public any prosecutions or punishments of security personnel in any of these cases. In some cases, the investigations fail to follow through with procedures that would provide critical evidence for any prosecution. Although there is no evidence that rape is sanctioned as a matter of government policy in Kashmir, by failing to prosecute and punish those responsible, or make known any action taken against security forces charged with rape, the Indian authorities have signalled that the practice of rape is tolerated, if not condoned. Indeed, in responding to reports by the press and human rights groups about incidents of rape, government officials unfailingly attempt to dismiss the testimony of the women by accusing them of being militant sympathizers.
Until recently, rape has often escaped international scrutiny and condemnation, including rape committed in the context of armed conflict. In the past, rape has often been accepted as “spoils of war” or mischaracterized as incidental to the conflict or as a privately-motivated form of sexual abuse rather than an abuse of power that implicates public responsibility. Reports of the widespread use of rape as a tactic of war in the former Yugoslavia have been instrumental in focusing attention on the function of rape in war and have provoked international condemnation. Such condemnation must be extended to the use of rape in internal conflicts as well.
Finally, India’s own criminal law makes torture a crime and explicitly prescribes punishments for members of the police or other security forces who have committed rape. Under section 376(1) of the Indian Penal Code (IPC), a minimum term of seven years’ imprisonment may be imposed for rape. In addition, the Criminal Law (Amendment) Act of 1983, which for the first time provided for the offense of custodial rape, prescribes a mandatory 10 years’ imprisonment for police officers who rape a woman in their custody.14 The sentence may be extended to life, and may also include a fine. Commissioned officers of the paramilitary and military forces are included under Section 376(2)(b) of the IPC and are thus also subject to this mandatory sentence. The Criminal Law (Amendment) Act (1983) also shifts the burden of proof regarding consent to the accused. However, despite the changes in the law, there is no evidence to show that the authorities have been stopped abusing people.
India’s military laws, notably the Army Act and equivalent legislation governing the federal paramilitary forces, also prescribe courts-martial and punishments for members of these forces responsible for rape. In general, military courts in India have proved incompetent in dealing with cases of serious human rights abuses and have functioned instead to cover up evidence and protect the officers involved. In this report, Asia Watch and PHR recommend that all military or paramilitary suspects in rape cases be prosecuted in civilian courts.
Reports of rape by Indian security forces in Kashmir emerged soon after the government’s crackdown began in January 1990. Despite evidence that army and paramilitary forces were engaging in widespread rape, few of the incidents were ever investigated by the authorities. Those that were reported did not result in criminal prosecutions of the security forces involved.
Those who have attempted to document incidents of rape have also been abused by Indian security forces. In November 1990, Dr. K., a surgeon at the Anantnag District Hospital, was arrested after he had made arrangements for a gynecologist to examine seven women who had alleged that they had been raped by security forces. The women, who had been brought to the hospital while Dr. K. was on night duty, reported that the security forces had broken up a wedding and raped all of them, including the bride. On November 29, Dr. K. was arrested from his home by members of the CRPF who had surrounded his house. The CRPF blindfolded him along with two friends who were with him at the time and took them to a military camp. The security forces asked Dr. K., “Why did you call the gynecologist?” When he replied, “I treat people irrespective of who they are,” they proceeded to beat him with lathis (canes) and a metal belt. His friends were also beaten in this way. The three men were detained for four days.
Researchers are of the view that the lives of non-Brahmin are in constant danger, the judiciary has bowed down to the ruling elite and the Indian Army is helping BJP for getting political mileage.
Over eight million people in the occupied state have been under a lockdown since August 2019 when the fascist Bharatiya Janata Party abrogated the special status of Jammu and Kashmir and suspended the rights of the Kashmiri people.
Each year, since the 1990s, Kashmiris across the Line of Control as well as people from all walks of life, all over the world, observe Kashmir Solidarity Day on February 5. Over eight million people in the occupied state have been under a lockdown since August 2019 when the fascist Bharatiya Janata Party abrogated the special status of Jammu and Kashmir and suspended the rights of the Kashmiri people.
The Kashmiri people remain prisoners in their own houses, their mosques deserted, while internet access is blocked. Schools, markets and roads are almost deserted as people are not allowed to move freely. Indian security personnel spread fear among the unarmed population in a repeat of the Nazi occupation of conquered territories.
It is conventional that lethal weapons are not used to disperse unarmed protesters. But, recently, India’s Border Security Force showered bullets on a handful of protesters. It is unprecedented. The world’s apathy to the plight of the Kashmiris people under the Indian yoke encourages India to resort to living bullets. Earlier India has been using shotguns to fire metallic pellets on unarmed protesters. These pellets blinded countless Kashmiris youth.
In 2021, three hundred incidents of persecution of minorities have been registered in India. US State Department has released its international religious freedom report, which paints a dark picture of the situation for religious minorities in India. India is on the path to self-destruction with its Hindutva policy targeting all minorities living in India.
An Indian writer, Khushwant Singh, has predicted doom for India due to its self-destruction course. President Genocide Watch, Dr Gregory Stanton has warned of an impending genocide of Muslims in India, comparing the situation of the country under PM Modi government to events in Myanmar and Rwanda. He explained that the enactment of the Citizenship Amendment Act (CAA) is especially for targeting Muslims. The idea behind the Act is “exactly what the Myanmar government did to Rohingya Muslims” in 2017. Myanmar government first declared Rohingya non-citizens through legislation and then expelled them through violence and genocide. India has entered into a very critical phase of communal strife after the Hindu zealots led by RSS-inspired BJP leaders openly called for genocide of the Muslims and persecution of other minorities through tacit extreme ploys. Human Rights Watch in its latest World Report 2022 unveiled said that Indian authorities had intensified their crackdown on activists, journalists, and other critics of the government using politically motivated prosecutions in 2021.
Even Mehbooba Mufti, a former BJP ally, was compelled to say, “Kashmiris feel that they are literally imprisoned in a cage from which almost all exit routes are barred save one, to India, which is also not without peril.” A.G. Noorani, in a similar vein, said, `Kashmiris are distrusted and treated poorly in many parts of India, whether as students or as traders.’
Earlier, the United Nations General Assembly (UNGA) unanimously adopted a Pakistan-sponsored resolution, titled “Universal Realisation of the Right of the Peoples to Self-Determination”. It unequivocally supports the right to self-determination for all peoples under subjugation, alien domination and foreign occupation”. With close to 900,000 troops, police constabulary and security sleuths deployed, the Indian-held Kashmir is practically an Indian colony.
While lauding the UNGA resolution, Pakistan’s foreign minister drew attention to the extra-judicial killings, arbitrary arrests, including that of human rights activist Khurram Parvez,and illegal detentions in the Indian-held Kashmir (‘Hope for Kashmiris’: UNGA adopts Pakistan-sponsored resolution on right to self-determination, December 17, 2021).
A similar Pakistan-sponsored resolution was adopted last year with little tangible follow-up The resolution affirmed the right to self-determination for peoples subjected to colonial, foreign and alien occupation. The resolution called on “those States responsible to cease immediately their military intervention in and occupation of foreign countries and territories”.
Wolfgang Danspeckgruber (editor), in the book The Self-Determination of Peoples: Community, Nation, and State in an Interdependent World, deals with the subject from all angles. He covers issues of sovereignty and self-determination in contemporary world affairs. The book covers the conceptual, political, legal, cultural, economic, and strategic aspects of self-determination. Danspeckgruber says: “No other concept is as powerful, visceral, emotional, unruly, and steep in creating aspirations and hopes as self-determination”.
Self-determination is recognised as a right in several international law instruments. These include the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States, the Helsinki Final Act, and the Vienna Declaration and Programme of Action. The International Court of Justice (ICJ) affirmed the right in several cases including Namibia, Israeli wall, and Chagos Archipelago advisory opinions. In the East Timor case, the court confirmed its universal jus cogens and erga omnes character.
Sumantra Bose argues, `The Security Council’s resolutions – notably those of March 1951 and January 1957- is unequivocal that such participation and representation could not be regarded as a substitute for an internationally supervised plebiscite (Sumantra Bose, the Challenge in Kashmir: Democracy, Self-Determination and Just Peace, p.166). Bose had referred to the UN Security Council’s two resolutions that rejected so-called accession by the constituent assembly. These resolutions, No 91(1951), Document No, S/2017, Rev.1, Dt 30 March 1951 and Resolution No. 122 (1957), duly rejected the ratification of the accession by the constituent assembly in Srinagar. Resolution No. 122 (1957) was adopted by UN Security Council at its 765th meeting on 24 January 1957.
In international law, a territory is considered “occupied” when it is actually placed under the authority of the hostile army. The definition of occupation and the obligations of the occupying power were initially codified at the end of the 19th century. The definition still in force and commonly used nowadays is the one contained in the Regulations Concerning the Laws and Customs of War on Land annexed to the Fourth Hague Convention of 18 August 1907 (H.IV). Section III of the regulations detail the rights and obligations of the military authority over enemy territory (Articles 42–56).
The ICJ regards these regulations as equivalent to international customary law (infra Jurisprudence). This definition takes into account the effective control of the territory by a hostile authority and seeks to regulate the responsibility of such authority.
Contemporary international humanitarian law has clarified and added to the rights and duties of occupying forces, the rights of the populations of occupied territory, and the rules for administering such territory.
According to humanitarian law, occupation falls in the definition of international armed conflict and is regulated as such by the four Geneva Conventions and Additional Protocol I. The occupying power faces specific obligations where it has effective control over the territories occupied. These include obligations related to respect human rights, law, and order, in addition to respect for relevant provisions of humanitarian law related to occupation. The basic obligations of the occupying power under humanitarian law are to maintain law and order and public life in the occupied territory.
India is bound to let Kashmiris exercise self-determination right. If India disobeys UN resolutions it is a rogue state, pacta sunt servanda, treaties are binding on the parties.
Self-determination is a legal right of people whether the decolonization process is perfect or imperfect, as in the case of occupied Kashmir, in which the UN became involved.
Karen Parker points out, `The disposition of [illegally occupied] Kashmir has not been legally decided. It is not part of any country and yet we have failure today the realization the expression of the self-determination of the Kashmir people (Karen Parker, Understanding Self-Determination, the Basics, Collected papers and proceedings of the First International Conference on the Right to Self-Determination).
Malcolm N. Shaw says, `Self-determination became the legal principle that fuelled the decolonization process, both obliging the colonial powers to grant independence (or another acceptable political status) and endowing their territory in question with a special status and thus, international legitimation.