30 years after the Kunan Poshpora incident, victims still await justice while security forces remain unpunished
For a long Kashmir has been a site of a heavy deployment of military forces. There has been brutal conflict between Indian security forces and armed insurgents demanding independence. In its attempt to crush militant movement, the Indian central government has pursued several policy measures, some of which are repressive in nature.
According to a report by the Asia Watch, Kashmir Under Siege, allegedly, rape often occurs during cordon-and-search operations, locally called crackdowns during which men are held for identification in parks or schoolyards while security forces search their homes.
During these situations, the security forces frequently engage in collective punishment against the civilians, usually by beating or otherwise assaulting residents, and burning their homes.
Allegedly Rape is used as a means of targetting women whom the security forces accuse of being “militant sympathizers”. In fact, male detainees are also subjected to various forms of sexual assaults.
Though the laws prohibit torture and such acts, the Government, by turning a blind eye to such alleged atrocious acts, only embolden the forces to act with impunity.
The Kunan Poshpora incident
On February 23, 1991, several women from a small village of Kunan & Poshpora of Indian administered Kupwara district of Kashmir, alleged mass rape by army soldiers of the Fourth Rajputana Rifles. Nearly all women of the two villages became the victims of the incident.
Human rights organizations including Human Rights Watch have said that the number of raped women could be as high as 150. On the dreadful night, the soldiers entered the villages in the guise of a cordon and search operation. They dragged out the men from their houses for interrogation and allegedly raped a lot of women.
“We were getting ready for bed when the soldiers came. They took the men away. Some started drinking alcohol. I was holding my two-year-old daughter in my arms when they tried to grab me. tore my pheran, my shirt – I don’t even know what all happened after that. There were five of them. I still remember their faces.”, said Zooni, one of the victims of the incident according to a report by BBC.
The village headman and some other village leaders asserted that the officials denied the charges and took no further action. Officials countered by saying that no clear complaint was made.
A local magistrate who visited the village requested for a more comprehensive investigation, only to be told that officials in Delhi had denied the charges without checking with officials in the state. Moreover, a police investigation that was eventually ordered never commenced.
Later on, in 2013, a group of 50 women filed a Public Interest Litigation (PIL) in the High Court for reopening the case. J&K Police had failed to file the closure report for the case, which was closed as untraced in 1991, even after 22 years.
The police finally filed the closure report in 2013, after the PIL. In response to criticism of the government investigation, army officials requested the non-governmental Press Council of India to investigate the incident.
After more than three months, a committee sent by the Council visited the village. After interviewing a number of the alleged victims, the committee concluded that contradictions in the women’s testimonies, and the changing number of alleged victims, rendered the charge of rape “baseless.”
After which the survivors filed a fresh petition in the High Court for orders on compensation and reinvestigation following the SHRC recommendation.
Again, the army approached the High Court and got the orders for compensation and the investigation stayed. In 2014, the then state government of Jammu and Kashmir challenged these orders in the Supreme Court.
What do national and international laws say about these violations of Human Rights?
The Government of India has ratified the ICCPR, which means India has officially accepted the agreement by signing on it.
India has also ratified the four Geneva Conventions of 1949. Common Article 3 of the Geneva Conventions, applies to internal conflicts, prohibits murder, torture and ill-treatment of non-combatants by both government and militant forces. This implies that rape is clearly prohibited by Common Article 3 as it is both a cruel treatment and an outrage on personal dignity.
Finally, India’s own criminal law makes torture a crime. Moreover it also explicitly prescribes punishments for members of the police or other security forces who have committed rape.
Despite evidence that army and paramilitary forces were engaging in widespread rape, very 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.
The reason behind the impunity of armed forces
The Armed Forces Special Power Act,1958 is an act of the Parliament of India that grants special powers to the Indian Armed Forces to maintain public order in “disturbed areas”.
It gives the armed forces wide powers to shoot, kill, arrest giving ambiguous pretext, conduct warrantless searches, and demolish structures in the name of “aiding civil power.” Since the AFSPA provides powers to arrest without a warrant and then detain arrested persons for unspecified amounts of time, the armed forces frequently engage in torture and other ill-treatment during interrogation.
Allegedly Soldiers have raped, tortured, “disappeared,” and killed Indian citizens for five decades without fear of being held accountable.
Even the Kunan Poshpora incident became the focus of a government campaign at that time to acquit the army of charges of human rights violations. This provides a telling example of the government’s failure to hold Indian armed forces accountable.
In fact, the Union of India in 2016, filed another petition in the SC that raised questions on the States Human Rights Commission’s jurisdiction for passing an order in six cases involving the armed forces, referring to the draconian AFSPA that grants impunity to the armed forces.
In the same year, the Supreme Court stayed the orders for reinvestigation and compensation. Ever since, the case has remained in the registry of the Supreme Court, without being listed for hearing in five years.
23rd February is thus commemorated every year as Kashmir Women’s Resistance Day, remembering the courage and struggle for justice by the survivors of the incident, who are still awaiting justice thirty years later.
The AFSPA violates provisions of international human rights law such as the right to life, the right to be protected from arbitrary arrest and detention, and the right to be free from torture and cruel, inhuman, or degrading treatment.
It also denies the victims of the abuses the right to a remedy. Prior approval of the central government is required according to AFSPA for civilian prosecutions of military personnel. The Indian government claims that the soldiers responsible for human rights violations have to face military courts. Under the Army Act, the military may transfer a soldier from civilian to military custody for offences that can be tried by a court-martial.
However, the Kunan Poshpora incident and several other available information show scant evidence that the military is fully and effectively prosecuting soldiers and officers for abuses committed by them.
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