2017 Theses Master's

Seeking Accountability for Rape Committed by Indian Armed Forces in Jammu and Kashmir: An International Law Perspective

Clark, Lauren

Rape has taken place during times of armed conflict throughout all of history. In fact, research has indicated that it occurs during all wars. The frequency of this violation varies from case to case; in some conflicts, it only occurs occasionally when soldiers find themselves with an open opportunity to rape civilians without being held accountable, such as in the Occupied Palestinian Territories, and in others it is widespread and part of a systematic policy, as was the case during the Rwandan Genocide. Both men and women can face this form of violation at the hands of soldiers and insurgents; however, women are raped much more often than men. Rape has been internationally prohibited during armed conflict for a long time; in fact, “the protection of women in war is found in several early texts, such as the Belli Treatise of 1563, which held that the crime of rape during wartime was punishable by death.” In the present day, rape is prohibited on the international level through international human rights law, international humanitarian law, and international criminal law. Additionally, in some cases, rape can be prosecuted as a war crime, crime against humanity, or genocide. Taking this into consideration, it is clear that the international community considers rape to be a serious offense. It is perceived this way not only because it has been committed during conflicts throughout all of history and is sometimes widespread, but also because it is thought to be the most personal form of violation and therefore has a negative impact on victims that can last a lifetime.

Because rape is such a serious crime, and occurs during all armed conflicts, it is important to ensure that all victims receive appropriate justice through the legal system. However, there are many states in which rape frequently goes unpunished. One of these states is Jammu and Kashmir, which is legally a disputed territory, but controlled by India. In fact, Kashmiri women have been raped on a frequent basis by Indian armed forces since 1989 without receiving any justice. Considering how long this abuse has been occurring, it is necessary to figure out a way to bring justice to Jammu and Kashmir, which is the purpose of this paper. Through an analysis of the history of the Kashmir Conflict, the sexual violence Kashmiri women have been subjected to, a couple of cases of such abuse, and the ways in which international law can be applied to the situation, this paper will illustrate that by not holding its troops who have committed rape in Jammu and Kashmir accountable, India is guilty of violating international human rights law, and most likely international humanitarian law as well, and because the article that it is most likely violating in international humanitarian law, Common Article 3, carries individual criminal responsibility, and the situation in the state probably meets the threshold needed to trigger the application of individual criminal responsibility, India is expected to punish these soldiers.