BY: Nandini Tyagi

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“The accounts of rape, wife beating, forced childbearing, medical butchering, sex-motivated murder, forced prostitution, physical mutilation, sadistic psychological abuse, and other commonplaces of female experience that are excavated from the past or given by contemporary survivors should leave the heart seared, the mind in anguish, the conscience in upheaval. But they do not…. The tellers and the stories are ignored or ridiculed, threatened back into silence or destroyed, and the experience of female suffering is buried in cultural invisibility and contempt… the very reality of abuse sustained by women, despite its overwhelming pervasiveness and constancy, is negated…The problem, simply stated, is that one must believe in the existence of the person in order to recognize the authenticity of her suffering… It is vast and awful, and nothing will ever make up for it.”

-Andrea Dworkin, Right-Wing Women.

A video of two Kuki-Zo tribal women being paraded naked and gang-raped, hit with ethnic and insurrectionist violence in the state of Manipur, invoked overwhelming outrage from the international community online, but how many of us can truly claim to be surprised?

INTRODUCTION

Sexual violence against women in times of armed conflict is not an exception to the state of affairs but a fundamental part. Despite several international efforts and domestic legislation to minimise the effects of widespread violence on civilians, the Indian government seems too engaged in stifling free speech to figure out ways to tackle female-specific violence when the state machinery collapses. Policymakers across the globe have failed miserably to effectively tackle the categorical sexual violence and humiliation that women in conflict-torn areas are subjected to, providing no special legislative or legal recourse to these victims, especially in light of the reported increase in sexual assault in conflict areas post-deployment of UN Peacekeeping Forces. This article argues for establishing a statutory mechanism to recognise and administer justice to female victims of sexual violence and abuse during conflict.

WHAT SETS IT APART?

Sexual violence during conflict has been defined as “not just rape out of control, but rape under orders, as means of pursuing military, political or economic ends.” Rape has long been acknowledged as a weapon of war. History is no stranger to women being rendered victims to violence along all fronts at the hands of men who are revolutionaries and patriots only from the waist up during times of civil and political unrest. Over the years, the government has enacted special female-centric legislations such as Protection of Women from Domestic Violence Act, 2005 (hereinafter ‘PWDV’) and Protection of Women from Sexual Harassment Act, 2013 (hereinafter ‘PWSH’) to tackle sexual offences against women in extraordinary settings with quick and effective redressal. However, there remains a gaping lacuna in law when it comes to the protection of women against them being taken hostage, forcefully displaced and impregnated, systematically raped, sexually enslaved, and trafficked for sexual and economic exploitation in situations of insurgency, riots or large-scale breach of law and order.

The breakdown of state machinery, opportunism, and the establishment of the culture of rape within armed rebel groups have been identified as some of the primary causes of sexual violence during conflict. However, some scholars argue for the existence of multi-factor variables, such as ethnic hatred, gender inequality, forceful recruitments and their interplay into militia by claiming that mono-causal theories do not take into account the variations and inconsistencies in the phenomenon. Studies have shown a rising trend in sexual violence in India, particularly concerning mob-related violence, accounting for a majority of political violence in South Asia.

In addition to this, the implementation of the Armed Forces Special Powers Act, 1958 (hereinafter ‘AFSPA’) in certain states of India complicates matters even further. This draconian law empowers the armed forces to uphold public order in regions considered as “disturbed areas.” They possess the right to disallow gatherings of five or more people and can use force, including open firing, making arrests and conducting searches without a warrant. They can also prohibit the possession of firearms under reasonable suspicion. The military activity in these regions have, therefore, gathered public outrage due to extensive reports of sexual assault and rape perpetrated by military personnel against local women, notwithstanding the plethora of other human rights violations.

The motivations of the perpetrators of such offences, their identification and prosecution, the surrounding circumstances and the rehabilitation mechanism for the victims in these extraordinary situations, which, as unfortunate as they may be, are not a rarity in India. They need to be given an additional layer of legislative protection. As a country that witnesses nearly 49 registrations of sexual offences against women every hour in the regular course of affairs, the state simply cannot afford to treat the safety of women in times of exceptional civil and political upheaval nonchalantly. Such a situation cannot be left to the standard course of investigations and costly, lengthy litigations, in a system already severely overburdened by procedural and institutional vices.

INTERNATIONAL PERSPECTIVE

While written accounts of sexual assault against women during times of conflict date as far back as Ancient Rome, one need only look as far back as a few decades to trace the prevalence of the ghastly phenomenon of female-specific sexual violence during civil conflict, all through the Bosnian and Syrian wars, the Nepalese and Peruvian insurgencies, the conflicts of Rwanda, Ethiopia, Iraq and Palestine and the more recent reports from the Taliban-run Afghanistan and the crisis in Ukraine.

Many countries have adopted a series of UN Security Council Resolutions to this effect but only after the widespread reporting of rapes of women in the former Yugoslavia. Resolutions 1960 (2010) and 2106 (2013) in particular, have placed significant emphasis on putting an end to impunity through effective justice systems and legal structures as the primary means of prevention. Moreover, the UN Special Representative on Sexual Violence has cautioned against providing amnesty to those responsible for committing acts of sexual violence.

The Hague Convention of 1907, while implicitly outlawing sexual violence during conflict, did not end impunity for these crimes. For instance, following WWII, the International Military Tribunal at Nuremberg did not explicitly pursue sexual abuse, and the Tokyo Tribunal overlooked the Japanese army’s captivity of “comfort women.” In 1949, the Geneva Convention declared “Women shall be especially protected… against rape, forced prostitution, or any form of indecent assault.” Multiple women-specific international and regional instruments that followed the Geneva Convention, such as Convention on the Elimination of All Forms of Discrimination against Women of 1979,  Convention of Belém Do Pará of 1994,  Maputo Protocol of 1995 and Istanbul Convention of 2014 speak of the eradication of sexual violence against women in more explicit terms.

Subsequently, the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR) incorporated rape as a crime against humanity and as a crime of genocide when perpetrated during armed conflict in addition to carrying out convictions solely on the basis of sexual violence perpetrated against Bosnian Muslim women, and brought slavery within the purview of a crime against humanity. Even the African Commission on Human and Peoples’ Rights has condemned the armed forces’ use of sexual violence as a military tactic against civilian populations.

Rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilisation, and any other comparable form of sexual violence were formally designated as crimes against humanity by the International Criminal Court (ICC) when committed in a widespread or systematic manner through the Rome Statute which came into force in 2002.

The latest Report of the Secretary-General on Conflict-Related Sexual Violence addresses the implementation of UNSC Resolutions and includes strategic action recommendations. Reporting an increase in militarization and illicit arms proliferation after unconstitutional changes of government, resulting in heightened sexual violence against civilians in conflict zones, the Report noted worsening of sexual violence in countries like the Democratic Republic of the Congo, Ethiopia, Haiti, Ukraine and South Sudan, with impunity, the digital space, climate insecurity, weakening rule of law, state fragility, and gender inequality acting as contributing factors, making women more vulnerable to sexual violence.

These measures, however, have been widely criticised for their lack of effectiveness and being charged with enabling impunity. Critics have noted that securitisation of sexual violence in conflict, instead of eradicating it, obscures the systems that underline sexual abuse during civil turmoil, luring us into a “decoy of feminist concerns.” This causes fetishization of sexual violence which undermines any effective action to address gender-based violence in conflict-stricken regions. Even though international law has long been interested in the issue of conflict-related sexual violence and has included it in international court cases following war and genocide, the wider consequence of a justice response remains unstudied.

INDIAN PERSPECTIVE

The women of the modern Indian state have been subjected to sexual exploitation in times of conflict ever since its genesis. In most large-scale incidents of violence- the 1947 partition of India, the 1971 Bangladeshi War of  Independence, the 1984 anti-Sikh riots, the exodus of Kashmiri Pandits in 1998, the 2002 Gujarat riots, the Muzaffarnagar riots of 2013 and the recent Bengal violence of 2021, -appalling instances of sexual assault and gang rape have been reported, with the scale of the brutality sometimes being uncovered only decades later.

Kashmir and most Indian North-East states have been hotbeds of human rights violations and sexual violence at the hands of both rebels and armed forces. Even though the bloodshed in Kashmir has been remedied to a certain extent post the abrogation of Article 370 of the Indian Constitution, sexual assault numbers are on the rise. The North-Eastern women, rendered second-class citizens of “India’s troubled periphery,”  remain bludgeoned under the weight of an indifferent government and the tyrannical AFSPA. Manipur, in particular, showcased the lowest (48.4%) charge-sheeting rate for crimes against women in 2021. Both civilians and women of the militia from regions in Northern India, inflicted with Naxalite-Maoist insurgency, face sexual assault on a massive scale which goes largely unreported.

RECOMMENDATIONS

In this regard, the recommendations of the Justice Verma Report Committee of 2013 are extremely feasible and pragmatic. The Committee had recognised the need for an amendment in the country’s criminal justice system to accommodate the handling of “offences against women in border areas /conflict zones” and made certain recommendations. The Committee recognised the misuse of AFSPA by the internal security forces when it came to systematic or isolated sexual violence. Highlighting India’s obligation to honour the International Convention for the Protection of All Persons from Enforced Disappearance, the Committee recommended that sexual violence against women by members of the armed forces or uniformed personnel must be brought under the purview of ordinary criminal law and  special care must be taken to ensure the safety of women who are complainants and witnesses in such cases.

It also recommended the appointment of special commissioners to ensure women’s safety in all areas of conflict in the country by empowering them to monitor and initiate actions for redress and criminal prosecution in all cases of sexual violence against women by armed personnel. The Report emphasises on the protection of female detainees in police stations, and paramilitary check points, subject to the regular scrutiny of special commissioners. Armed personnel, the Report recommended, must have their training reoriented to include strict observance of all orders issued in this regard.

The continuance of AFSPA and AFSPA-like legal protocols in conflict areas needs to be urgently reviewed to determine the propriety of resorting to this legislation in the concerned area(s). Furthermore, implementing a mechanism inspired from PWSH and PWDV is imperative to simplify procedural protocols to avoid situations where cases are refused or not registered by the police. Rather than codifying the principles that respect the victims’ anonymity and refrain from laying down a specified time period of filing complaints, the legislation should focus on a quasi-judicial mechanism of handling such matters. The legislature should resort to a more administration-friendly apparatus to ensure speedy disposal of cases, proper victim compensation and rehabilitation. This should be done through maintenance of separate funds in states that the central government deems to be areas of conflict based on empirical data-driven research.

In adherence to the aforementioned conventions on conflict-related sexual violence, the legislation should additionally make provisions for the deployment of women’s protection advisers, improve evidence bases, and coordinate efforts through United Nations Action. Additionally, creating formal and informal educational programmes and media guidelines which seek to counteract stereotypes, cultural norms, and any practises based on the notion of male supremacy, or in the reinforcement of traditional gender roles, which either legitimise or increase violence against women that are adapted to all levels of the educational process is equally important. There must be a focus on promoting education and training for those involved in the administration of justice, such as police and law enforcement officers, as well as other personnel responsible for implementing policies to prevent, punish, and eradicate violence against women in conflict-torn areas.

Furthermore, the legislation must contain explicit and liberal provisions to tackle abortion and childcare-related issues that may arise for women affected by conflict-related sexual assault. This would ensure adequate medical and psychological attention that needs to be provided to the victims. In addition to this, the establishment of institutions that provide special skill-based training to such women to enable them to become financially independent is also imperative. The state must be obliged to take all necessary measures to ensure that no child, especially female, take a direct part in hostilities and is recruited as a soldier. There should also be provisions for handling trafficking and forcible prostitution of such women and their rehabilitation.

CONCLUSION

The issue of sexual violence against women is ancient and never-ending. Women in conflict are reduced to cannon fodder, objects of male perversion, and half-widows whose martyrdom is often relegated to the pages of male-authored history, or worse, glorified by civilisational amnesia into nostalgia. Civil conflict denies women their personhood by forsaking them to meander through the tedious corridors of law, ever-recovering and apologising for the many injustices it has wreaked over the years, but still remaining incapable of making proper amends.

A few days after hearing suggestions on the ongoing violence in Manipur, the Supreme Court of India took suo motu cognisance of the horrifying video and called it the “grossest of constitutional abuse” and gave an ultimatum to the central government to take action, lest the Court itself be compelled to intervene. While commendable, it is also imperative to note that policing cannot be allowed to flow from an ever-expanding judiciary but should be the duty of the legislature alone. The Apex Court has since long been the torchbearer of jurisprudential revolution concerning women’s and human rights through judgements such as Vishakha v. State of Rajasthan and The Chairman, Railway Board and Ors. v. Chandrima Das. It has been the most vigilant guardian of abortion, marital and employment rights for women and ensuring implementation of Articles 21, 14, 15, 16, 39(a), 39(b), 39(c) and 42 in their truest form.

While it is also true that the Court may not be “a passive, disinterested umpire” to social upheaval, in the author’s humble opinion, it can be a little more; given its lack of resources and constitutional means at hand, even if it so wishes without toeing too close to the line of judicial overreach. At most, the overlords of justice may issue furious guidelines and vehement rebukes at the government or make begrudging recommendations in hopes of waking it out of its stupor of complacency. However, this too would hold no weight till read into actual, material legislation. The recourse, therefore, lies not with the Indian judiciary but with the Parliament and policymakers. The legislature must realise that sexual violence cannot be alleviated through sub-remedies and half-baked expressions of sympathy on social media. There is an alarming need for far-reaching amendments and the introduction of special legislation to the Indian justice system to accommodate this particularly gruesome and rampant crime and take effective measures to restore the citizens’ eroding faith in the Indian democratic machinery.

Recognising women’s right to a life free from violence and sexual degradation in both the law and the social conscience is essential. Acknowledging sexual violence against women as an attack against human dignity and a structural manifestation of historically unequal power relations between women and men is the first step towards taking effective measures to remedy the issue of conflict-related sexual violence. The institutions of law must be empowered to enhance accountability in conflict-affected regions. The culture of impunity and amnesty for perpetrators of sexual abuse during conflict must end. The legislature must pay heed to centuries of female strife and make space for women afflicted by the ravages of armed conflict within the contours of legislative policy and criminal law framework to ensure that justice is manifestly “seen to be done.”

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(Nandini Tyagi is a law undergraduate at Maharashtra National Law University, Aurangabad. The author may be contacted via mail at nandinityagi707@gmail.com )

Cite as: Nandini Tyagi, Women of Manipur- The Collateral Damage, 2 November, 2023<https://rmlnlulawreview.com/2023/11/02/women-of-manipur-the-collateral-damage/>date of access.