Views from Srinagar

By Altaf Hussain Wani

THE International Covenant on Civil and Political Rights (ICCPR) prohibits torture and other forms of cruel, inhuman and degrading treatment. The Government of India has ratified the ICCPR. India has also ratified the four Geneva Conventions of 1949. Rape is clearly prohibited by Common Article 3; it is customarily understood to constitute both cruel treatment and an outrage on personal dignity. Protocol II provides authoritative guidance for interpreting Common Article 3’s prohibition on “outrages upon personal dignity.” Protocol II outlaws “outrages upon personal dignity, in particular humiliating treatment, rape, enforced prostitution and any form of indecent assault.” The commentary of the International Committee of the Red Cross explains that this article “reaffirms and supplements Common Article 3 … [because] it became clear that it was necessary to strengthen … the protection of women … who may also be victims of rape, enforced prostitution or indecent assault.”
Although the line between cruel and inhuman treatment and torture is not well defined in either humanitarian or human rights law, rape also violates the ICCPR and Common Article 3 prohibitions on torture. When any party to an armed conflict, internal or international, uses rape, with the intention of inflicting severe pain or suffering and for the purposes of coercing, punishing, or intimidating, or to obtain information or a confession, it constitutes torture. 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 all conflicts zones like Jammu Kashmir as well.
Jammu and Kashmir is a recognized United Nations disputed territory and the people of Jammu and Kashmir are yet to decide their political future. United Nations Security Council resolutions pledge people of Kashmir a free and fare plebiscite to decide their political destiny. However Indian denied to this right, forced to people of Indian occupied Kashmir to launch a peaceful political resistance against Indian occupation. India in response to people indigenous and peaceful struggle Indian state resorted to use of brutal force to subjugate the peoples will. India’s government has pursued a policy of repression in Kashmir which has resulted in massive human rights violations by Indian army and paramilitary forces. Throughout the conflict, the occupational forces have deliberately targeted civilians. One of the heinous crimes Indian army and other forces committed during last 26year is rape. This has been used as a tool to punish and humiliate entire community.
Rape is an easy retribution for peoples “collective crime’’ the crime of being antagonistic and disloyal to the Indian state, which holds all Inhabitants guilty at least by implications. Rape has been used strategically and systematically to threaten, humiliate and degrade the populace and kill their spirit in the struggle against military occupation. Rape have thus been used a form of punishment for people of Indian occupied Kashmir, a punishment for rising against an unjustifiable dominance. The occupational forces include Indian regular army Units, Rastryia Rifles, the army raised for counter militancy operations in Jammu Kashmir, Border security Forces, (BSF) Central Reserve Police Force, (CRPF) Jammu Kashmir Police and other Para military forces which number over 700,000 and make Kashmir world’s density populated militarized Zone.
A study conducted by Medicine Sans Frontiers 2005 found 67 percent of respondents in Karalpora block of district Kupwara has witnesses or heard of an act of rape or molestation, since 1989. It found that Kashmiri women are the worst sufferers of sexual violence in the world. It further revealed that sexual violence has been routinely perpetuated on Kashmiri women, 11.6 percent of respondents saying they were victims of sexual abuse.
There are many examples and testimonies of women who were raped in groups by Indian armed forces in Indian occupied Kashmir. Asia Watch in its report on rapes in Kashmir in 1993 list six documented cases of gang rape and mass rape committed by Indian army. The international Tribunal on human rights and justice in Indian occupied Kashmir, in its publication, “Alleged Perpetrators” has mentioned nine cases of rapes committed by Indian army. There are countless other examples of rape and gang rape in Kashmir for not all victims report sexual violence for the fear of ostracism or exclusion in an environment where justice remains elusive.

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