The problem

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EARLY in 2012 a group of South Asian women met in Delhi to begin discussing the possibility of putting together a research project on sexual violence and impunity in the region. Their concern and interest in the subject were guided by several questions: all were agreed that the South Asian region had, in recent years, seen a noticeable increase in sexual violence, particularly the collective violence of wars and political conflicts. Alongside this increase – which was evident also in the more hidden but widely known violence that took place within the guarded space of the home and the neighbourhood – was another phenomenon, the growing lack of accountability for perpetrators. What was it, the women asked, that time and again allowed perpetrators of sexual violence to get away, and which, despite so much research and activism, repeatedly brought blame, opprobrium, culpability, to the victim and survivor?

Even a cursory look at recent South Asian histories threw up many examples: the end of 25 years of violent conflict in Sri Lanka had not resulted in an open and frank discussion about sexual violence as a weapon of war despite widespread knowledge of its existence. The International Crimes Tribunal (ICT) of Bangladesh, set up in 2009 to investigate and prosecute suspects for the genocide committed in 1971 by the Pakistan Army and their local collaborators, had paid scant attention to the question of mass rape, despite it being widely acknowledged that it had happened and many women had spoken out about it. Discussions on Kashmir in India or Swat in Pakistan, had largely ignored the question of sexual violence. Caste violence, violence against sex workers and men and transgender persons was barely spoken about.

Silence was not the only issue here. Crucial to maintaining the silence was the active collusion of states in providing impunity to perpetrators, sometimes under the guise of protective laws and special powers to the armed forces, at others under the guise of nationalism. So heavily were the odds stacked against women that, until recently, very few had dared to speak out. Backed by culture, and strengthened by the state, and often with the active collusion of non-state actors, impunity then, remained largely unchallenged.

Although statistical data is hard to come by – no state in the South Asian region has thought it necessary or important enough to map the prevalence of sexual violence – the scale is not small. What data there is, from other parts of the world, clearly points to this. At the international level, UN Women estimates that in the 1994 genocide in Rwanda, between 250,000 and 500,000 women were subjected to rape; during the civil war in Sierra Leone, this figure stood at roughly 60,000; it was between 20,000 and 50,000 in the war in Bosnia and Herzegovina and at least 200,000 in the Democratic Republic of Congo since 1996. UN Women notes, ‘Wartime sexual violence is one of history’s greatest silences and one of today’s most extreme atrocities.’ Though it is now recognized as a crime against humanity, in most instances, it goes unpunished and is ignored in peace negotiations and amnesties.

Closer home, the story of the thousands (estimates put the figures at somewhere between 200,000 and 400,000) or rapes during the Bangladesh War of Independence in 1971, and the Partition of India in 1947 are well known, as is the fact that the quarter century long Sri Lankan war left an estimated 90,000 women widowed, and some 50,000 households headed by women who had no support and no access to resources, rendering them easy prey to sexual violence.

Were these conditions specific to the South Asian region? Elsewhere in many parts of the world, rape was increasingly being discussed and acknowledged, not only as a weapon of war, but also as a crime against humanity and as an instrument of genocide. The 1998 Akeyesu judgment by the International Criminal Tribunal for Rwanda (ICTR) provided a clear definition of rape and delineated its elements as a crime against humanity and as an instrument of genocide. In the International Criminal Tribunal for the former Yugoslavia (ICTY) jurisprudence pioneered the approach that used acts of rape and other forms of sexual violence to include elements of other international crimes such as torture, enslavement, and persecution, which previously had not been litigated in the context of gender violence.

The Special Court for Sierra Leone (SCSL 2000) brought into jurisprudence on violations of international humanitarian law a particular form of sexual violence prevalent in the conflict in Sierra Leone – forced marriages. In this case, forced marriage was distinguished from sexual slavery or sexual crimes and argued as a crime against humanity. Building on the progressive development of the case law for sexual and gender based violence under ICTR, ICTY and SCSL, the Rome Statute of the International Criminal Court (ICC) includes rape and forms of sexual violence as part of the crimes of genocide, crimes against humanity, and war crimes, and specifically enumerates rape, forced prostitution, sexual slavery, forced pregnancy, enforced sterilization and prosecution on account of gender as specific crimes punishable under the statute.

Despite these important developments at the international level, little has happened, until recently, at the national level since countries seemed to be singularly reluctant to confront sexual violence within their borders. In 2012 however, a significant first step was taken by the Special Court for Sierra Leone, which unanimously held guilty the sitting head of state, Charles Taylor for ‘aiding and abetting war crimes and crimes against humanity including sexual violence.’ Taylor was not only the first sitting African head of state to be thus indicted, but also the first former head of state since Nuremberg to be indicted and subsequently tried and convicted for war crimes and crimes against humanity, including sexual violence by an international criminal tribunal.

More recently, in March of 2016, the verdict, in Guatemala, in what has come to be known as the Sepur Zarco trial (in which Mayan Q’eqchi women came together to file cases against the perpetrators who belonged to the army) provides another significant milestone. This became the first case in which the use of sexual violence as a weapon of war was tried in the same country in which the violence took place. In a remarkable judgment on the systematic use of rape during the Guatemalan civil war that lasted 36 years, the court awarded 360 years imprisonment to two army personnel. As Luz Mendez of the Guatemalan Revolutionary Council and a signatory to the Peace Accord with the government, said, ‘the judgment issued by the court did not only bring justice for the women of Sepur Zarco, but it broke the total impunity for crimes of sexual violence during the armed conflict, and gave hope to hundreds of thousands of women in Guatemala and the world, who have suffered sexual violence in war.’

The progressive thinking developed in the course of these trials brought sexual violence into the mainstream of international jurisprudence (something that was largely invisible until the 1990s), such that it became part of the collective knowledge to which women’s movements worldwide have contributed enormously. Indeed, in Guatemala too, it was the sustained efforts of women’s organizations that worked with and supported the victims/survivors of sexual violence that enabled the cases to be filed. In South Asia a comprehensive and critical analysis of existing jurisprudence on sexual violence is a newly emerging area of scholarship, and a solid community of practice is still to emerge in this field. There are many dimensions of sexual violence – ranging from conceptual clarity on definitions of sexual violence, to legal, medical and forensic understandings of evidence gathering and monitoring and more – that remain inadequately explored.

South Asia has much to learn from advancements elsewhere. How do our countries expect a ‘return’ to peace (and we need to question the composition of such a peace) without addressing the question of the large-scale and calculated attack by perpetrators on women and the systematic violation of their right to bodily integrity and autonomy? How can this question be addressed without including rape and sexual violation squarely within definitions of crimes against humanity? What are the glaring silences of our domestic laws and policies? What do they have to say about the endemic sexual violence and rape driven by caste, ethnicity and religion? How can we think creatively about questions of reparation beyond the ways states in the region have done by ghettoizing women in rehabilitation camps where they remain stigmatized and marked as raped women, to be separated from others, as we saw in India following the partition of 1947 and post-1971 relief measures in Bangladesh.

Concern about the growing violence and the serious and continuing lack of accountability on the part of states and governments, the failure to address the impunity enjoyed by perpetrators, an absence of effective mechanisms to provide justice and reparations, and the virtual indifference to the psychological damage suffered by victims, survivors and their families and communities, led the researchers to conceptualize a research project on sexual violence and impunity in South Asia.1

Women’s movements and women scholars across South Asia have made important contributions in bringing the issue of sexual violence and impunity to public attention. And yet, there are significant knowledge gaps. However, an absence of adequate literature on the subject does not mean that there is nothing available. South Asia has a rich literary and scholarly tradition and indeed there is a fair amount of writing on sexual violence, and while impunity is not necessarily directly addressed in these writings, concern about it is implicit in most of them. We believe it is important to systematically understand the nature of impunity, and what legal, social and cultural norms states draw upon to enable and allow impunity for the perpetrators and to silence the demands for accountability.

Equally, it is important to document the lesser-known ways in which women, and sometimes communities, create structures to deal with the trauma and dislocation caused by sexual violence. These stories have remained largely unknown. In much of caste violence in India for example, or in cases of feudal or tribal instances of retribution and punishment, the violation of women’s bodies is an accepted way of establishing male superiority. And because these hierarchies of caste and tribe are so embedded even in the ‘minds’ of our secular, modern states, the victims/survivors often find solutions of their own, creating ways of ensuring some sense of justice.

Our discussions are centred very much within the frame of a South Asian feminist solidarity that takes on board the contexts of colonialism, caste, class and race. We feel it important to focus on our realities, keeping in mind the connected and diverse histories of our region. Evolving an indigenous framework to press for justice thus is as crucial as building international solidarity; at the same time, a concern to be kept in mind while building what Bina D’Costa defines as ‘transnational feminist networking’ is to ensure that feminist mobilizing and knowledge creation is not defined as ‘anti-national’ or against ‘national security’ and to see them as allies in the battle for justice.

In the last few years the South Asian region has witnessed many changes – in the public domain, a changed public discourse, as well as legal reform as a result of feminist and human rights’ activism and research and documentation. The gang rape and subsequent death of a young student in Delhi in December 2012 culminated in mass public anger, and generated public debate and feminist interventions. The testimonies of feminist activists to the Justice Verma Committee, constituted to recommend amendments to the criminal law for sexual assault against women, were an outcome of decades of intense engagement and study on the part of women scholars, researchers and activists in India.

The occasion provided a moment of deep reflection on the questions that activists were already grappling with. It also led to serious questioning within the movement: why, for example, did caste rape, or rape by the army, not result in the same kind of outrage, the same explosion of anger as the incident of 16 December 2012 had done? In the open discussion with the Verma Committee, feminist activists’ testimonies did not remain confined to amendments in the law but demonstrated a remarkable understanding as they presented the continuum of violence against women from home to communities to the frontiers of the nation states where women’s safety and bodily integrity were threatened in the name of protection of the borders.

In a small but significant step towards challenging impunity, on 6 September 2015, an army court martial awarded life sentences to six of its personnel found guilty in the ‘fake encounter’ case of April 2010 when the army killed three youths in the Machil sector of Kupwara district of Kashmir on the grounds that they were foreign militants. Even though now overturned, this conviction is significant for being the first time that the army was held accountable and not retained as an untouchable holy cow. Over in Sri Lanka, a significant judgment was the Jaffna High Court sentencing, on 7 October 2015, of four soldiers to 25 years of rigorous imprisonment, compensation and reimbursement of legal fees for the 2010 gang rape of a woman at a resettlement camp in Viswamadhu, Kilinochchi. Assigning culpability and ensuring strict punishment of the security personnel involved has been possible only with the sustained intervention of activists.

Undoubtedly, accountability has been a fraught issue across South Asia, especially when it comes to war crimes. December 2012 saw vehement protests in Bangladesh by the right wing Jamaat-e-Islami supporters and their student wing, Bangladesh Islami Chhatra Shibir, demanding the disbanding of the ICT of Bangladesh set up three years earlier to investigate and prosecute suspects for the genocide committed in 1971 during the Bangladesh Liberation War by the Pakistani Army and their local collaborators, Razakars, Al-Badr and Al-Shams. The vigorous counter protests, of those pressing for accountability and an end to impunity culminated in the ‘Shahbag movement’ – a popular student movement for justice for wartime crimes. The gazette notification, on 12 October 2015, recognizing 41 birangonas (war heroines) as freedom fighters for their contribution in the country’s Liberation War in 1971 has been more than 40 years in the coming, but an official recognition that can be viewed as reparation for the stigma and suffering these women were made to face in addition to the sexual violence perpetrated on them.

In Sri Lanka, still staggering under the history of ethnic conflict and the Eelam War that ended in 2009, the report of the Office of the High Commissioner for Human Rights (OHCHR) released in September 2015 concluded that there were reasonable grounds to believe that war crimes and/or crimes against humanity had been committed with regard to a variety of abuses, including sexual violence and other forms of torture; unlawful killings by all sides; forced recruitment of adults and recruitment of children as fighters by the LTTE (Liberation Tigers of Tamil Eelam) and enforced disappearances. The report recommended several legal, justice and security sector reforms and the establishment of an ad hoc hybrid justice mechanism integrating international judges, prosecutors, lawyers and investigators. In a move demonstrating the political will of the new regime to redress wartime human rights violations, a consensus resolution co-sponsored by Sri Lanka was passed on 1 October 2015 by the UN Human Rights Council encouraging the Government of Sri Lanka to implement its recommendations.

Following the end of Nepal’s 10-year insurgency in 2006, while the Truth and Reconciliation Commission (TRC) made rape a crime for which amnesty cannot be granted, the 35-day statute of limitations (recently increased to 180 days) for reporting of rape makes it virtually impossible for wartime rapes to go to court. Additionally, the TRC gave effective amnesty to those alleged to have been responsible for gross human rights violations and gives broad powers of reconciliation to the TRC, with the result that victims will be forced to give up their right to justice as part of the reconciliation process with the commission empowered to undertake mediation between victims and perpetrators even in the case of rape.

In India as the definition of sexual assault has expanded, we have gained considerable ground in our understanding of impunity for sexual violence and consequently are better able to speak about it and to fight for justice. It is noteworthy that during the targeted violence in Muzaffarnagar in India in 2013, seven Muslim women who were brutally gang raped and sexually assaulted by men belonging to the other communities, filed writ petitions for protecting their right to life under Article 21. In a landmark judgment in March 2014, recognizing the rehabilitation needs of the survivors of targeted mass rape, the Supreme Court of India ordered that a compensation of INR 500,000 each for rehabilitation be paid to the women by the state government.

The Occupy Baluwatar movement of December 2012 in Nepal, which some see as a ripple effect of the Delhi protests against sexual violence and demands for justice, had sexual violence and impunity at its centre. One of the major outcomes of the movement was the 27 November 2015 amendment broadening the definition of rape, bringing same-sex rape and marital rape into the ambit of law.

In Pakistan too, small steps forward were taken in the shape of a parliamentary panel approval in February 2015 of amendments in the anti-rape laws, supporting DNA profiling as evidence during the investigation and a prohibition on character assassination of rape victims during the trial.

Creating a body of research and a community of researchers and activists, building a common understanding resting on a shared history, but not guided by national interests of the countries, can make a significant move towards peace building in a region fractured by political, religious and ethnic divides. This set of essays and reflections have been put together with the hope they will inspire the next generation of scholars and activists to build on this knowledge, and broaden and deepen it to end impunity for sexual violence.

URVASHI BUTALIA

LAXMI MURTHY

NAVSHARAN SINGH

 

Foootnote:

1. The Sexual Violence and Impunity (SVI) project, as it came to be known, received research funding from the International Development Research Centre and produced eight volumes on different aspects of sexual violence and impunity in the region. Fuller versions of the selected papers included here can be found in these volumes published by Zubaan.

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