In a statement in Kashmir’s Legislative Assembly in October 2013, then Chief Minister Omar Abdullah said 5125 rape cases and 14,293 molestation cases were registered in the state since 1989. Although reliable statistics on rape by security forces in Kashmir are hard to come by, existing evidence indicates it is frequent and pervasive (Rape in Kashmir: A Crime of War, Asia Watch and Physicians for Human Rights, 1993). Paradoxically however, compared to all crimes committed by security forces in Kashmir, rape has drawn the least response in terms of investigation and prosecution.

Incidents of rape are represented and perceived in terms of individual victims and individual perpetrators. Yet, Kashmir’s history of rape by personnel of state security forces is incongruent with the ‘individual soldier’ frame of explanation. For instance, among others, rape in Jamia Qadeem (1990); Anantnag (1990); Chanpora (1990); Panzgam (1990); Trehgam (1990); Kunan-Poshpora (1991); Chak Saidpora (1992); Haran (1992); Hyhama (1994); Gurihakhar (1992); Kangan (1994); Wavoosa (1997); Pahalgam (2002); Zachaldara (2004); Shopian (2009); Gujjardara-Manzgam (2011) indicate that the practice is systemic — a structural feature of the occupation, as well as a systematic practice in Kashmir. To highlight the latter is not to understate or disregard the trauma and unfathomable anguish of individual rape victims; nor is it to ignore the compelling need for institutional accountability for such crimes. Rather it is to illustrate of official silence and/or denial as a strategic response to deflect public attention away from the illegitimacy of Indian rule in Kashmir — exemplified by rape by state security forces.

For precisely this reason, Kashmir’s legacy of rape is represented and explained away as ‘excesses’ of individual soldiers against individual victims. In this regard, Jacqueline Rose reminds us that “faced with the disclosure of such misdeeds…the state will rush to return them to the citizen precisely as individual disgrace.” Institutional indictment of Kashmir’s accumulated legacy of rape by state forces would expose the illegitimacy of the Indian counter-offensive in Kashmir in ways far more damaging and damning than the term ‘human rights abuse’ can ever convey. The political stakes to conceal rape are therefore exceedingly high.

Beyond politics however, the issue of rape by state forces is quintessentially moral. If state-armed and state-funded personnel rape women in Kashmir, is the state they represent legitimate? A moral indictment of the occupation is a prospect feared by the occupier. Hence the denial, obfuscation and subversion of justice for rape victims. Hence also the stonewalling of justice for Kunan-Poshpora whereby — as Mr. Wajahat Habibullah’s belated confession revealed — a civil servant’s misplaced loyalty to the state overrode his moral and legal duty to ensure impartial investigation into an impugned crime. Mr. Habibullah’s decision to toe the state line at a time when state legitimacy in Kashmir had crumbled helped the latter ward off international criticism and censure over a grave and gross crime. The truth about Kunan-Poshpora had to be buried and Mr. Habibullah was a cog in the wheel in its burial. More than two decades later, Harsh Mander possessed the morality to acknowledge Kunan-Poshpora as possibly the single largest case of mass sexual violence in independent India (The Hindu, 9 July 2013).

Much has been written and said on the need to end impunity that would allow for the trial and prosecution of security personnel guilty of sexual crimes against women in Kashmir. Towards this end the demand to revoke impunity for security forces is just, legitimate and powerful. The state is accountable to citizens; security forces guilty of rape must be tried and punished. However, more than two decades ago, in a public lecture at the University of Oxford, Catherine MacKinnon captured the paradox at the heart of the debate on justice for sexual crimes against women in contemporary conflicts: can there be hope for justice from the very state system that perpetuates sexual crimes against women? In other words, will the Indian state facilitate the identification and prosecution of security personnel guilty of what international law deems as crimes against humanity? The answer to this question is in a way tied inextricably with not just the particular struggle for justice for the women of Kunan-Poshpora and countless other women in the villages and towns across Kashmir; it is also inseparable from Kashmir’s larger struggle for justice.

The possibility of securing justice from the courts of a state that has legalized suspension of the right to life, and accorded impunity for what international law affirms as war crimes and crimes against humanity seems at best remote, if not altogether impossible. Moreover, the crime of rape by security forces in Kashmir is a systemic crime that can hardly be tried by the very state-system that committed them. To quote Catherine MacKinnon again, “the power to act against this crime lies exclusively in the hands of those who commit them.” No section of the Indian polity is committed to altering the AFSPA-backed state of impunity in Kashmir; nor is there any public pressure to do so. Dominant public opinion refuses to acknowledge or accept that security forces in Kashmir are guilty of grave crimes and the violation of the laws of war. The Kashmiri people therefore rightfully feel that justice for Kashmir’s grave and unconscionable human rights tragedy should move beyond the Indian legal system into the ambit of international law.

Beyond the State: International Law in Kashmiri Courts

International law is of vital importance to Kashmiris struggle for self-determination. First, with reference to international law, India’s claim to jurisdiction over Kashmir is tenuous. There exist several discrepancies with regard to the Instrument of Accession upon which rests the Indian legal claim to Kashmir. In his book on Kashmir (Kashmir: The Unwritten History, 2013) scholar Christopher Sneddon uses historical evidence to demonstrate that then Dogra autocrat Hari Singh was not in control of his territory of Jammu and Kashmir in 1947. By the yardstick of international law he lacked the authority to sign such a document with another country. Further, the Accession was made under duress and coercion that, according to the Article 52 of the Vienna Convention on the Law of Treaties, renders it invalid (Parasaran Rangarajan, A Kashmiri Equation, 2014). Furthermore, there is evidence to suggest Indian troops were already in Kashmir before the Maharaja had signed the Accession Treaty thereby raising serious concern regarding the legality of Accession (Alastair Lamb: Kashmir – A Disputed Legacy, 1992).

Kashmir’s ledger of rape by Indian security forces symbolizes the Indian State’s disregard for human life and human dignity, and more specifically, its contempt for the humanity and dignity of the Kashmiri people

Finally, there remain doubts as to whether the Instrument of Accession was ever signed. International law stipulates that every treaty entered into by a member state of the United Nations must be registered with the UN Secretariat. India has never presented or registered the Instrument of Accession with the United Nations (Vikas Kapur and Vipin Narang, The Fate of Kashmir: International Law or Lawlessness?, Stanford Journal of International Relations, 2006). For all these reasons, Kashmir’s accession to India is legally questionable.Second, although the dominant concept of self-determination centred on anti-colonial struggles and the establishment of independent post-colonial nation-states, the legal principle of self-determination as a human right of all peoples guaranteed in the International Covenant on Civil and Political Rights, ICCPR, to which India is signatory, always had deep resonance among oppressed peoples within post-colonial nation-states:

“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (Part I, Article 1, The International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations, 1966).

India has argued that the right to self-determination applies only to peoples under foreign/colonial domination, not to sovereign states. Such a conservative and self-serving argument helps preserve the status-quo in Kashmir yet it is at complete odds with the wider, politically and ethically just concept of self-determination as a principle anchored in international law, and on popular consent, rather than on a states’ claims to territory or sovereignty. Paragraph 4 of the Vienna Declaration and Programme of Action (1993) affirms that no state can violate its international obligations by claiming the issue falls under its domestic jurisdiction. In other words, sovereignty cannot be used as an argument to evade state accountability for crimes committed by state personnel against a (Kashmiri) people, or for denying a people the right to self-determination.

Third, the significance of international law with reference to sexual crimes by State security personnel cannot be overstated. Rape is recognized as a crime of war in various international statues, courts, tribunals and judicial rulings (Security Council Resolution 808 [1993]; Security Council Resolution 1325 [2000]; the International Criminal Tribunal for the former Yugoslavia [1993]; International Criminal Tribunal for Rwanda [ICTR, 1994]; The United Nations Special Court for Sierra Leone [SCSL, 2002]; Rome Statute of the International Criminal Court [2002]).

International human rights law affirms rape as a crime mandating criminal prosecution. Article 5 (g) of the Rome Statue of the International Criminal Court ICC and Article 3 (g) of the Statue of the International Criminal Tribunal on Rwanda (ICTR) list rape against civilian women during domestic armed conflict as a war crime and a crime against humanity.

In 1998, the founding instrument of the ICC, the Rome Statute, was put to vote and adopted by 120 State parties. India abstained from voting and is not party to the ICC. Among its objections to the Statute were the two conditions: Article 17 (1) (b)] under which the International Criminal Court has jurisdiction to intervene in a country, namely, (a) the country in question is either unwilling to prosecute the crime, or shielding its perpetrators from accountability for ICC-defined crimes or (b) if the country in question is unable to investigate or prosecute ICC crimes because its legal system has collapsed. The evidence suggests that Indian state authorities are unwilling to allow investigation or prosecution of security forces guilty of rape in Kashmir. The demand to invoke international law in this case may be entirely justifiable in a situation where all domestic channels for legal redress for sexual crimes committed by state forces are blocked. Usha Ramanathan noted that India’s resistance to accepting the inherent jurisdiction of the ICC can be explained in part, “by anxieties about how investigation, prosecution and criminal proceedings in the Indian system may be judged by an international court,” (International Journal of Criminal Justice 2005).

Finally, all the above arguments for international legal intervention in Kashmir uphold a single moral argument for Kashmiri self-determination. This argument is not about numbers. Rather, it focuses on the nature of the crime to maintain that sexual crimes committed by state-funded and employed security forces against Kashmiri women are crimes whose purpose was not the curbing of political dissent, for self defense, or for the defense of territory – all of which are the normative, legitimate justification for states’ monopoly over violence. Rape by state-employed security forces is not only a violation of the Laws of War crafted by modern States; it is a crime of commission committed with impunity against a (Kashmiri) people by an institution whose job it is to protect civilians, especially women. It may further be argued that the gravity of rape by security forces is of an entirely different order not so much because of its scale or magnitude but because the nature of this particular crime violates “the order of mankind” in ways that are an affront to the moral code of humanity, and to the inalienable dignity of the human person (Hannah Arendt, Eichmann and the Holocaust, 1963). Kashmir’s ledger of rape, sexual abuse and sexual torture by Indian security forces symbolizes the Indian State’s disregard for human life and human dignity, and more specifically, its contempt for the humanity and dignity of the Kashmiri people. For this reason, and this reason alone, the people of Kashmir are justified in not considering a future under Indian jurisdiction.

As a people who have historically been at the receiving end of cruelty, injustice and oppression, whose memory is replete with unanswered pleas for protection and justice; as a people who were accusers, never the dispensers of justice; were the accused, never the prosecutors; the Kashmiri people have a right to sit in judgment over crimes committed against them. It is only right and proper that justice for sexual crimes against Kashmiri women by Indian security forces is done, and seen to be done, on Kashmiri soil, by Kashmiri judges, in Kashmiri courts, using international law, in a Kashmir free of Indian control.