Chapter 14 Rethinking Justice for Sexual Crimes: Realities in North Eastern States of India Anjuman Ara Begum Abstract:

Sexual violence in armed conflict situation is mostly unreported though widespread. Sexual violence refers to many different crimes including rape, sexual mutilation, sexual humiliation, forced prostitution, forced pregnancy and forced abortion. The culture of impunity and social notion of women as the bearer of the honour of the family and society results in culture of silence over the crimes of sexual violence during armed conflict situation. North East India has witnessed active internal armed conflict for decades and several special security laws have breaded into culture of impunity. Legal procedural aspects together with the social notion of honor have denied women justice for sexual violence. In such a situation, rethinking and analyzing the current scenario over the justice for sexual crimes may be worked out both at the policy level and also at the community level to ensure justice to women who survived sexual violence in north east India. The term sexual violence refers to many different crimes including rape, sexual mutilation, sexual humiliation, forced prostitution, forced pregnancy and forced abortion. These crimes are motivated by a myriad of factors.1 Sexual violence during conflict is an act of domination, grounded in a complex web of cultural preconceptions, in particular as regards gender roles. It is used to torture and humiliate people, and to punish or humiliate an enemy group or community. Sexual violence may be encouraged or tolerated within armed groups. In some conflicts, it has been used strategically to advance military objectives, such as the clearing of a civilian population from an area .2 The use of sexual violence in armed conflict situations is widespread and is as old as conflict itself. Despite the fact that it is so widespread, sexual violence has remains mostly underreported and the victims suffer in silence (Lyth, 2001). Sexual crimes in armed conflict situation is always treated always either a collateral damage or a matter of troop discipline clubbed with forgive and forget policy (Mitchell 2005).3

Sexual violence as an issue of war crime Feminist literature about the aftermath of the Second World War II and the womens movement, particularly that relating to campaigns of comfort women, or the maltreatment of German women in the aftermath of the Second World War raised international consciousness about the seriousness of sexual violence. After 10 years of extensive campaigns by comfort women and their allies, the Japanese government, no longer able to deny its involvement, finally admitted in 1993 to moral responsibility for wartime sexual slavery. However they maintained that the issue of reparation was resolved by the San Francisco Peace Treaty and bilateral reparation agreements thus they continue to deny their legal responsibility (Matsui, 2001). More recently the issue of sexual crimes attracted much international attention during the conflict in Yugoslavia in the early 1990s when media reports alleged that the policy of rape or rape as a weapon of war was planned at the highest levels of the Bosnian Serb military structure. Indeed, the International Criminal Tribunal for the former Yugoslavia (ICTY hereafter) and the International Criminal Tribunal for Rwanda (ICTR hereafter) secured the first convictions for rape and other forms of sexual violence as war crimes, crimes against humanity and acts of genocide (Matsui, 2001). Awareness of the issue has been growing ever since as sexual crimes remained located in the honour discourse. It has been treated as a crime of morality rather than a human rights violation. Sexual Violence and Legal Regime The Geneva Convention of 1949, the The Hague Conventions of 1899 and 1907, and the Code of Conduct for Law Enforcement Officials of 1979 treat sexual crimes as a crime which outrages the modesty of women. The 1949 Fourth Geneva Convention states that women are to be protected against any attack on their honor, in particular against rape, enforced prostitution, or any form of indecent assault (Article 27). Two 1977 protocols to the Geneva Conventions further define that rape carried out by combatants is a crime against international humanitarian law. Protocol II states that the humane treatment of civilians and those who have ceased to take part in hostilities includes an absolute prohibition on outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form or indecent assault . . . [as

well as] slavery and the slave trade in all their forms. (Article 4(e), (f) (Lyth, 2001). The International Bill of Womens Rights or the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted by the United Nations General Assembly on December 18, 1979, is an international human rights treaty that focuses on women's rights and women's issues worldwide. CEDAW defines Gender-based violence [as] a form of discrimination that seriously inhibits women's ability to enjoy rights and freedoms on a basis of equality with men4. Any act of gender-based violence that results in, or is likely to result in, violence against women is to be understood as encompassing, but not limited to physical, sexual and psychological violence occurring in the family, within the general community and perpetrated or condoned by the State.5 The ICTY and the ICTR codified sexual crimes in armed conflict situations and pronounced penal sanction for these crimes. The ICTR judgment in the case of Jean Paul Akeyesu marks a watershed in the development of the treatment of sexual crimes during armed conflict situation. The most striking point about this case is that Akeyesu was punished for sexual crimes committed during an internal armed conflict situation. 6 Rape in armed conflicts was till date penalized under the categories of the offences of Crimes against Humanity and Genocide. For the first time the Akeyesu judgment, categorized the offence of rape during armed conflict as a war crime. The Rome Treaty of 1998 which established the permanent International Criminal Court (ICC hereafter) has adopted a similar definition. Article 6 and 7 of the Treaty enumerate the elements of sexual crimes during armed conflict and establishes individual criminal responsibility for any crimes committed under the Treaty.7 ICC rules in reference to sexual crimes specifically perpetrated against women stipulate that the Court will not admit evidence of prior sexual conduct. ICC does not impose corroboration for sexual crimes. According to the law in India, it is not required to prove mens rea (Latin for guilty mind, usually one of the necessary elements of a crime) for the crime of sexual assault, only physical sexual contact needs to be proved. This has restricted the admissibility and applicability of genocidal intention in cases of sexual violence.8 This has also widened the scope of impunity for such crimes as imperative in the North

Eastern States (NES hereafter) of India.9 This aspect of law dealing with sexual assault crimes are discussed later. Genesis of internal armed conflict in NES At present there are no clear criteria for existence of an armed conflict. An armed conflict is understood10 to be any confrontation involving regular or irregular armed forces with objectives perceived as incompatible in which the continuous and organised use of violence: a) causes at least 100 deaths in a year and/or a serious impact on the area (destruction of infrastructures or nature) and human safety (e.g. people wounded or displaced, sexual violence, insecurity of food supplies, impact on mental health and on the social fabric or disruption of basic service); b) is intended to achieve objectives that can be differentiated from ordinary crime and are normally associated with: demands for self-determination and self-government or identity-related aspirations; opposition to the political, economic, social or ideological system of a State or the internal or international policy of a government, which in both cases provides motives for a struggle to achieve or erode power; or the control of resources or the territory. Both the Geneva Conventions and the Additional Protocols used the term extensively but is not defined in either. The pronouncement of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY hereafter) in the Tadic case11 is perhaps the most frequently cited decision on what constitutes an armed conflict. According to the Appeals Chamber, an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. In the light of the above discussion, the disturbed situation of north eastern states is nothing but an existence of a situation of internal armed conflict. Heavy deployment of armed forces in this region is seen since insurgency erupted. About 121 companies of Central para-military forces operate under the Armed Forces (Special Powers) Act of 1958 are deployed in Assam. After a series of bomb explosions by the

armed opposition groups in October 2004, Assam decided to recruit additional 6,000 policemen, two battalions of Armed Police, 4,000 Home Guards and 5,000 Village Defence Party personnel12. It is now estimated to be one member of the security forces for every 20 persons in Manipur, which has a population of 2.5 million 13. The Policepopulation ratio in Manipur is 554 per 100,000 (the national ratio is 126) and a Police density (policemen per 100 square kilometre area) of 63.8 (the national average is 44.4)14. In Assam, 30 thousand people were killed in the hands of armed forces since insurgency grew up in the state in 199015. According to records available with the police, more than 500 incidents of violence involving the militant outfits were reported from different parts of Assam last year (2007) and as many as 286 civilians were killed and around 750 others received injuries. Altogether 24 security personnel including policemen were killed in attacks by the militants16. In Manipur, atleast 905 people including 344 civilians were killed in insurgency-related incidents in Manipur from January 2005 to March 31, 2008 as per official records. NES is comprised of more than 213 ethnically diverse groups/communities with languages, cultures, social identities which are different from mainland India. Probably no other region in India, South Asia or the world knows such a large number of ethnic based insurgencies as Northeast India. The proliferation and mushrooming of militant outfits in this region form a complex matrix. In the NES, 7.6 percent of land area and 3.6 percent of the total population of India has been facing the onslaught of ethnic-based armed conflicts since the late 1940s (Mentschel 2007:2). Insurgencies erupted in this part of the country soon after national independence in 1947. The Naga movement spearheaded the right to self-determination in the entire NES and invited a repressive armed response from the state, which deployed armed forces in this region. Similar movements started in other states like Manipur on the issue of the forceful merger with the Union of India in 1949. Large scale immigration in both Tripura and Assam resulted into armed opposition during 1960 and 1970s respectively. Assam was declared a disturbed area in 1955 and till date this status continues.17 Numerous security laws were enacted to protect the national army in these disturbed areas, for instance the Armed Forces (Special Powers) Act of 1958 as amended in 1972

(AFSPA hereafter). The deployment of heavily armed military in this region resulted into quick militarization. It is estimated that about 50 thousand members of the armed forces are deployed into the region to combat an insurgent force which totals nearly 17 thousand.18 In such a war zone justice for sexual violence remained a far cry. Legal complexities together with the cultural notion of women as the honour and dignity of the family and community, have resulted in the fact that sexual crimes have not received much attention, though there was ample reason to. Womens status in the conflict zones of the NES Womens status in the NES is considered to be high, in view of the relative greater mobility of women than in other parts of India, their public visibility, matrilineality - as opposed to the patrilinear systems of most other states in India, and their generally significant participation in economic activities. This perception is often illustrated by the existence of self-help groups, traditional cooperative systems, womens markets and other forms of cooperative village action (Goswami 2005). The traditional tribal structure allows women to enjoy liberalism in their family life or as an individual in the society to a great extent. However this has not protected them; the ongoing armedconflict situation prevalent in the NES has intensified the violence faced by women, which takes the form of sexual, mental or physical abuse, killings and clashes. Women and their dear ones have been the targets of violence by both State and non-State actors. Procedural aspects of sexual crimes in NES The legal aspects of the redressal mechanisms of sexual crimes prevalent in the NES can be studied from two angles the de jure situation and the de-facto situation. De-jure situation: Two types of procedures are prevalent in the NES. Warrant case under Criminal Procedure Code ( Cr.P.C hereafter) Summary Court Martial trials, conducted by the Army Court under the Army Act 1950.

Warrant case In a case of sexual violence the state police takes cognizance of the offence based on a First Information Report (FIR) submitted by the victim or someone else on her behalf. Accordingly the trial begins as per the provisions of Indian Penal Code (IPC hereafter). Section 375 of the IPC defines rape as an act of intercourse with a woman against her will; without her consent; or, with consent obtained through deception; by putting her or any person in whom she is interested in fear of death or hurt, or when she is in an unsound state of mind, under intoxication or stupefaction; or, when the woman is under sixteen. Section 354 punishes outraging the modesty of a woman. Section 509 of the IPC defines the offence of insulting the modesty of a woman by any word, sound, gesture, exhibition of an object or act. Section 376 of the IPC provides for rigorous imprisonment for a minimum of ten years extendable to life if the act of rape or gang rape is committed by an officer against a victim in his custody or in the custody of his subordinate/s. Sections 376-A, B, C, D punish intercourse with a woman in the custody of a public servant and pronounces five years imprisonment for such crimes. The proceedings in a case of sexual crimes are to be conducted in camera. Section 114 (a) of the Indian Evidence Act deals with the presumption of rape and absence of consent if a woman accuses the public servant who is in custody of her to have had intercourse with her. The most disturbing factor in the Evidence Act is that when a man is prosecuted for rape, it is allowed to establish whether the woman was of generally immoral character (section 155 (4) of Indian Evidence Act). This section of the Evidence Act, which allows the victim to be questioned regarding her past sexual history is used by the defense to humiliate the victim in the Courtroom19. Immunity provisions are also provided in the Cr.P.C. Section 197 of the Criminal Procedure Code protects all public servants, including magistrates and judges, employed by the Union and the State governments, from legal action without prior sanction sanction from the government. Summary Court Martial Trials Summary Court martial trials are governed by the Army Act of 1950. Civil offences are not triable by court-martial (Section 70 of the Army Act) though a person subject to this

Act is triable if the offence is committed (a) while on active service, or (b) at any place outside India, or (c) at a frontier post specified by the Central Government by notification in this behalf. Punishments awardable by courts-martial as per section 71 of the Army Act are (a) death; (b) transportation for life (c) imprisonment, either rigorous or simple, for any period not exceeding fourteen years; (d) cashiering, in the case of officers; (e) dismissal from the service; (f) reduction to the ranks (g) forfeiture (l) stoppage of pay and allowances until any proved loss or damage occasioned by the offence of which he is convicted is made good. This is a very restricted procedure and non-transparent. The trial takes place at the vicinity of the Army headquarters. For a victim of sexual violence this would mean trial at the door of the perpetrator, with the perpetrators seniors at the judges seat. Not surprisingly the participation of victims in these proceedings is low. The proceedings are closed for public scrutiny and the rules of conduct and instruction manuals for military personnel operating in disturbed areas under AFSPA are being kept confidential (SAHRDC, 1998). Special Security laws leading to Impunity Several security laws were enacted to deal with militancy in the NES. The Armed Forces (Special Powers) Act 1958, as we saw above, is one such draconian law. The AFSPA was passed in 1958 to control Naga insurgencies (SAHRDC, 1998). Parliamentary debates indicate that initially it was enacted to be applicable for only one year in Assam (Sanajaoba, 2007 ). The NES were reorganized in 1972 and accordingly the Act was amended in order to remain in force in all the states of North East India. The AFSPA is applicable in any disturbed area as per section 3 of the Act. Section 3 empowers the Governor of a State or the Administrator of the Union Territory, or the Central Government to notify an area as disturbed if the use of Armed Forces in aid of civil power is necessary. Thus for the declaration of a disturbed area the authority only needs to be of the opinion that whole or parts of the area are in a dangerous or disturbed condition such that the use of the armed forces in aid of civil powers is necessary.20 There is no definition or clarity about what constitutes a dangerous or disturbed condition. The declaration depends on the satisfaction of the government officials and it is not subject to any judicial review, which is a basic provision of the constitution. By

default, the declaration of a disturbed area resembles a declaration of a de facto emergency devoid of the constitutional mandates and protection. Under Section 4 of this Act any commissioned officer, warrant officer, noncommissioned officer or any other person of equivalent rank in the Armed Forces may use force to the extent of causing death, they may destroy any armed dump, prepared or fortified position or shelter from which armed attacks are made or are likely to be made, or any structure used as a training camp for armed volunteers or utilized as a hideout by armed gangs or absconders, arrest without warrant and enter and search without warrant any premises. Such an arrangement has permitted extrajudicial executions, arbitrary detention, disappearances, custodial deaths, custodial rapes etc rather than protecting civilians. The right to remedy is violated by section 6 of the AFSPA which provides immunity from legal accountability. Section 6 of the AFSPA prohibits legal proceedings against the armed forces without a central governments sanction. Since sanctions are rarely granted, this provision has in effect provided a shield of immunity for armed forces personnel implicated in serious abuses.21 The State Human Rights Commission has no jurisdiction over the human rights violations by armed forces and the National Human Rights Commission can seek a report from the armed forces, however, without any power to sanction penalties. Critique on the AFSPA The Armed Forces (Special Powers) Act, 1958 has its genesis in the Armed Forces (Special Powers) Ordinance of 1942. In order to counter the Quit India Movement the then Viceroy Lord Linlithgow declared emergency all over the British India and promulgated the Armed Forces (Special Powers) Ordinance, 1942 on 15 August 1942. This ordinance confers special powers to the armed forces to arrest and use force (even kill) civilians on mere suspicion. Armed forces were also provided with virtual immunity from legal action. The ordinance was reenacted in 1958 as an Act to continue in the states of North East India and Jammu and Kashmir. The conferment of such wide powers to the armed forces acting in aid of civil power to maintain law and order made the Act subject to continuous debates for the last

five decades. One point of critique was that the Act proved to be very gender insensitive. The Act was challenged before the Supreme Court on the ground of its constitutionality, legality and legitimacy.22 The Court reviewed the Act and upheld its constitutional validity in 1997 with an addendum in its judgment, which is a list of dos and donts while acting under AFSPA. In July 2004, public protest against the Act reached an unprecedented height when a female combatant was found dead with wound marks at her pelvic region within a few hours of her detention by the armed forces. The government of India formed a Committee to Review AFSPA headed by Justice Jeevan Reddy. The report23 was not made public officially but was leaked to a newspaper, the Hindu, in October 2006. The leak revealed that the Committee has recommended for the repeal of the Act and amendment of the Unlawful Activities Prevention Act, 1967. In 2007, the Administrative Reforms Commission headed by chairperson Verappa Moily, too, in its fifth report recommended for the repeal of the Act. Suggestions for amendment include insertion of provisions similar to the present form of AFSPA and the amended Act is to be made application all over India. Various international human rights treaty bodies of which the government of India is a party also reviewed the AFSPA and expressed their concern over the deployment of this special security law for a prolonged period and urged for its immediate repeal. These bodies are Committee on Elimination of Racial Discrimination (CERD) Committee (May 2007) CEDAW Committee (February 2007 and February 200), UN Human Rights Committee recommendations (August 1997).24 De-facto situation As per the national law, a FIR to the police station is the preliminary step to seek justice in sexual crimes. Our field study shows that due to cultural notions of honour and modesty sexual crimes are suppressed; the more so if the victim is unmarried. Many times the police declines to accept a FIR quoting prior sanction requirements for filing a case against the armed forces. Not a single case has been tried by a regular court in 50 years of internal armed conflict mainly due to this requirement. Court martial proceedings are carried out very rarely. During court martial proceedings the victim is

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asked to appear before the Army judge in a court situated in an army camp, which is deeply traumatic for victims. Such a trial by the Army court negates the principle of supremacy of the judiciary as the whole proceeding is not carried out by an independent, impartial legal mechanism. Thus the very element of natural justice is denied. The Army Act categorizes rape as a civil crime (section 69) and has no provision for civil proceedings like compensation or reparation. In such a situation, justice for sexual violence against women cannt be achieved. A firsthand account of some case studies I collected could probably give an insight about this fact. Case studies On July 15, 2004 a photograph appeared on the front page of most of the news sources in India illustrating the bold protest of 12 women in front of Kangla Fort in Imphal, Manipur that housed the Assam Rifles, highlighting the utter denial of justice in cases of sexual violence. These women dared to invite the armed forces to come forward and rape them- a statement expressed as the final call to have a life of human dignity and bodily integrity. Systemic impunity and injustice for sexual crimes and other crimes committed by the armed forces in this part of India over a protracted period of 50 years has resulted in utter dissatisfaction and distrust over the justice delivery mechanism. What forced these 12 women to use their naked bodies and the ultimate weapon of protest was that Thangjam Manorama alias Henthoi, a 32 years old woman was allegedly raped and executed by personnel of the 17 Assam Rifles in Manipur, after she was picked up from her residence by them on the early hours on July 11, 2004.25 Troops of the 17 Assam Rifles came around midnight on July 11, 2004, broke open the door, arrested Manorama and issued an arrest memo to the family. The bullet ridden body of Manorama was found at around 5:00 am on July 11, 2004 by the villagers at Keirao Wangkhem Road near Ngariyan Maring Village, about four kilometers from her residence. The body carried several bullet wounds in the genital area. This case was widely reported and caused a civil stir across the state of Manipur and is currently subjudice before the Gauhati High Court. No one is prosecuted or arrested for the charges of rape and murder of Manorama so far. This case is a direct proof of the blatant abuse of

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the special powers by the security forces as instead of handing over the arrestee to the nearest police station, Manorama was sexually assaulted and most probably she was killed to manipulate the crime committed by the security forces.

In a rare case of successful trial of the sexual assault case of Arubi Devi (name changed on request), the victim continues to suffer in different ways even after prosecution and compensation. Arubi Devi was sexually assaulted by two members of the 2nd Maha Regiment on August 1, 1996 in Manipur. The incident took place in her house in front of her husband and disabled son. The two rapists were Havildar Apparao Mariba Waghmare and N Havildar Vithal Domaji Kalane from the 2nd Maha Regiment of the Brigade Commander of Indian Army. Both of them were later imprisoned for 10 years after a summary court martial by the Army Court; they were also terminated from their jobs. Arubi Devi has filed a case before the Gauhati High Court, Imphal Bench, claiming 1 million INR (approx.USD 22,000) as compensation. 26 After a prolonged litigation for five years Arubi Devi received 2 hundred thousand INR (approx. 4,500 USD) as compensation which was initially denied by the Army authority on the ground that they have restored her dignity and honour through the punishment of the culprits. This restoration of honour and dignity didnt restore Arubis family happiness and conjugal life that she enjoyed before the crime. Arubi Devi said, since that day, my husband never touched me and he would throw bread at me as if I am a dog.27 The case of Lilabati Bahsya is similar. 28 On 16 June 1998, three army personnel belonging to the 313th Field Regiment of the Indian Army entered the house of Lilabati Baishya at Nalbari, Assam and assaulted her husband. Two soldiers raped her while the third one kept her husband down in the courtyard at gunpoint. The next day, the husband lodged a complaint at Nalbari Police Station. Lilabati was medically examined that day by the Medical and Health officer of Civil Hospital, Nalbari. The examination established injuries on her body as well as the rape. The police took up the case with the army authorities who cooperated and organized a test parade for the victim to identify the suspected culprits. Lilabati identified A. Ramalingam and Y. Gunner Rangiram. Both were court martialled and held guilty of assault and rape. They were stripped of their 12

positions and sentenced to undergo imprisonment. But the army authorities denied any vicarious responsibility for the actions of its personnel since they had not taken place in the course of performance of any official duty. The Gauhati High Court held the higher authorities of the army strictly liable and directed the payment of 1 hundred thousand INR (approx.2300 USD) as compensation and a few thousand INR as the cost of the litigation. A proper investigation into the allegations of sexual violence was denied to the victim despite wide media coverage. Maniki Bezbaruahs provides an exemplary observation. On October 2, 1998 around 8:pm. security personnel entered Manikis house during a search operation for ULFA (United Liberation Front of Assam, a militant group) militants in Nalbari, Assam. All male members of the house were away and Maniki was cooking when security personnel entered her house asking about ULFA militants. Seeing that a room next to the kitchen was locked he ordered them to open it. Maniki asked her sixteen-year-old daughter to open it. As the girl opened the door, the man pushed the girl into the room and tried to sexually molest her. The daughter screamed and Maniki came to her rescue with her three-months-old baby in her arms. The daughter fled but the security personnel pounced on Maniki, threw the three-months-old baby on the ground and raped her (Goswami 2005). Local women groups protested widely against the case. A FIR (First Information Report) was filed. A counter case accusing her of trying to defame the Indian Army was filed by the Army and an arrest warrant was issued against her. Instead of investigating the allegations of sexual assault, the police knocked at the door of Manikis residence to arrest her for defaming Indian army. She was not arrested due to fierce protests by the local womens groups. The family found it safe to withdraw the FIR filed by Maniki.29 In this way a cry for justice was nipped in the bud. North East India could be well one of the regions which are infamous for unaccountable mass rape cases. Cries for justice have faded over the time lapse and justice is buried by now. An example is the Tapaimukh mass rape case. This case took place on January 16, 2006. A writ was placed before the Gauhati High Court on a mass rape in Parbung and Lungthulien in Churachandpur district of Manipur, India, In this

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region, which is bordering Myanmar, 21 Hmar (tribal) women were allegedly raped by members of the UNLF (United National Liberation Front, militant group from Manipur) and the KCP (Kangleipak Communist Party, a militant group from Manipur). The Parbung Police Station had registered as many as 25 different FIRs in connection with the incident. The Rajkhowa Commission of Inquiry was constituted by the Government of Manipur under the Commission of Inquiry Act of 1952 on March 21, 2006 to determine the facts of the allegations of causing serious injury to many villagers and molestation and rape of young girls belonging to Lungthulien village and surrounding areas under Parbung police station on January 16, 2006 by non-state actors and to fix responsibility. Some 16 women, including one 24 year old housewife submitted their account before the Commission. The Commission submitted its report on May 30, 2008. The report has not been made public till date. The Ujanmaidan rape case is similar. The Assam Rifles raided the Ujanmaidan of Koyai sub-division in 1988 to search for militants. During this operation 14 tribal women were raped in Purba Gobindabari village under the Chhawmanu police station in Dhalai district of Tripura. One woman testified that security personnel tied her husband and raped her in front of him. The youngest raped was a girl of 12 years.30 A Special Commission was constituted to investigate this incident of mass rape. According to parliamentary discussions the special commission confirmed the report of rape. No action has been taken so far. Similarly, there will be few people who remember the Barpeta rape case. What happened was that on May 11, the 1991 Police Battalion and Central Security forces conducted a search operation in Baghmara and Agrungguri villages of the Barpeta district in Assam and sexually assaulted at least 37 women.31 No investigation, let alone a prosecution took place. Conclusion The Sexual Violence and Armed Conflict: United Nations Response, report of 2000 rightly stated that on sexual violence and armed conflict, two points must be made at the outset. First, sexual violence during armed conflict affects men as well as women. Second, it is clear that women are more likely to be subjected to sexual violence than

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men. Women are also targeted for different reasons than men, and they are affected by the experience in very different ways in relation to men. As a result of sexual violence women are frequently shunned, ostracized, and considered unmarriageable. Permanent damage to the reproductive system, which often results from sexual violence, has different implications for women. The report states that it inflicts life-threatening bodily and mental harm and forms part of the conditions imposed to bring about the ultimate destruction of an entire group of people. This applies to all cases discussed in this chapter. Though the impact of sexual assault is great, rape and other crimes of sexual violence have received little attention in international law and until recently. Mitchell argues that the failure of humanitarian law instruments to adequately incorporate, characterize, or even mention rape and sexual assault has downplayed crimes against women as the unfortunate but inevitable byproduct of war (Mitchell 2005). Crimes against women have been traditionally defined and prosecuted alongside or folded into other atrocities, which, as Pearce suggests, tends to subsume the incidence of sexual violence and prevent it from receiving the individual condemnation from which it would benefit (as quoted in Mitchell, 2005). The case studies discussed here reveal that sexual crimes in an internal armed conflict like that prevailing in the NES have served the purposes of extrajudicial punishment, to create a psychosis due to fear, intimidation, retaliation; another reason is to elicit sexual pleasure, with the knowledge that the victim will not talk about it in public as it will bring shame on the community. Rape in a conflict situation or under a repressive regime is neither incidental nor private. It routinely serves a strategic function and acts as a tool for achieving specific military or political objectives (Mentchel 2008). This aspect of sexual crimes has received little attention compared to what it deserves. Due to the absence of a conceptual on sexual violence it was not possible to contextualize sexual violence in the NES as crimes against humanity, war crime or genocide. The case studies we made in the NES show that the offence of a sexual crime is treated as a matter of military discipline32 and a civil offence33, never as a crime against humanity, a war crime or genocide.

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The accountability of non-state actors as oppositional armed groups or militant groups need to be ensured. Non-state actors enjoy total immunity for any crime committed by them as the provisions of impunity under the legal regime are not applicable to them. One way out would be to recognize non-state actors to bind them to follow article 3 of the Geneva Conventions. The sexual violence committed in this region has been synonymised as a form of collateral damage; this made the quest for justice for such crimes look as a casual endeavour. As pointed out earlier, social notions of women as upholding the honour and dignity of the family and community together with legal complexities block the road to justice for women in cases of sexual violence. Sexual violence requires legal attention with a broader lens taking into account the nature of the crime and the social stigma faced by the victim and it must proceed beyond the myopic sense of justice as punishment or compensation. References: Goswami,Meghna, MG Sreekala and Roshmi Goswami, Women in Armed Conflict Situations published by North East Network, Guwahati, Assam, 2005. Lyth, Annette, 2001, The development of legal protection against sexual violence in armed conflicts Advantages and Disadvantages (December 2001), 139, http://www.iktk.se/publikationer/rapporter/pdf/development.pdf (accessed on November 22, 2009) Matsui, Yayori, 2001, The Historical Significance of the Womens International War Crimes Tribunal 2000 -Overcoming the Culture of Impunity for Wartime Sexual Violence, Kanagawa University Review No 39 July 1, 2001, 238 -250 Mentschel, Binalakshmi Nepram, 2007, Armed Conflict, Small Arms Proliferation and Womens Responses to Armed Violence in Indias Northeast, Heidelberg: South Asia

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Institute, Department of Political Science, University of Heidelberg, Working Paper No 33 available at http://archiv.ub.uni-heidelberg.de/volltextserver/volltexte/2007/7867/pdf/Mentschel2.pdf as on February 13, 2011 Mitchell, David S, 2005, The prohibition of rape in international humanitarian law as a norm of jus cogens: clarifying the doctrine, Duke Journal Of Comparative & International Law [Vol 15:219], 2005, 219-258, available at http://www.lawlib.utoronto.ca/diana/whrr/cfsearch_display_details.cfm? ID=2932&sister=utl&subjectid=57&type=articles&searchstring=57 as on February 12, 2011 Sanajaoba, Naorem, Revisiting Justice Reddy Report on AFSPA, 1958, Gauhati University Journal of Law, Vol VI, 2006, 1-34 South Asia Human Rights Documentation Centre, 1998, Armed Forces (Special Powers) Act: A Study in National Security Tyranny a report available at http://www.hrdc.net/sahrdc/resources/armed_forces.htm as on February 12, 2011

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Sexual Violence and Armed Conflict: United Nations Response, 2000, United Nations Division for the Advancement of

Women, Department of Economic and Social Affairs, http://www.un.org/womenwatch/daw/public/w2apr98.htm as on January 15, 2009

Map

on

Sexual

Violence

in

Armed

Conflict,

http://maps.maplecroft.com/loadmap?

template=min&issueID=100&close=y, accessed on August 1, 2008.

3

Collateral damage Unintentional or incidental injury or damage to persons or objects that would not be lawful military

targets in the circumstances ruling at the time. Such damage is not unlawful so long as it is not excessive in light of the overall military advantage anticipated from the attack. (Joint Publication 3-60). I borrowed this term to show the kind of attention paid to sexual crimes during armed conflict. It has nothing to do with any military connotation.
4

General recommendation No. 19 adopted in eleventh session of CEDAW, 1992 violence against women, United Nations Declaration on the Elimination of Violence against Women, 1993,

http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19
5

http://www.un.org/documents/ga/res/48/a48r104.htm accessed on January 20, 2009

6

The Prosecutor Vs Jean Paul Akayesu, Case No ICTR -96-4-T, @ September 1998, Count 12., http://ictr-

archive09.library.cornell.edu/ENGLISH/updates/upd005.html as on January 30, 2009

7

Article 7.1.g and 7.2.f of Rome Treaty of International Criminal Court (ICC). Article 7.1.g catagorises rape, sexual

slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity as crimes against humanity. Article 6 defines genocide as For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
8

India is not a signatory to the ICC statute, nor to the additional and optional protocols to Human Rights conventions

including the Geneva Convention of 1949, ICCPR, 1977, CEDAW 1979.

9

North Eastern States consist of seven states Assam, Manipur, Tripura, Mizoram, Arunachal Pradesh, Meghalaya,

Nagaland. It has over 4,500 kms of external frontiers with Bhutan, China, Myanmar and Bangladesh. The region spreads over an expanse of 25,000 sq. km. with a relatively small population of less than 40 million.
10

Alert 2009: report on Conflicts, Human Rights and Peace building, Escola de Cultura de Pau / School for a Culture of Peace publication, 2009, available at http://www.humansecuritygateway.info/documents/ECP_ReportConflicts_HumanRights_Peacebuilding.pdf, as on June 25, 2009 11 Prosecutor Vs. Dusko Tadic, case no IT-94-1-A, http://www.un.org/icty/tadic/appeal/judgement/index.htm, as on January 30, 2009
12 13

India Human Rights Report 2006, ACHR. www.achrweb.org Laishramcha Jinine, Militarisation of Manipur special issue of Article 2 available at www.article2.org

14

Manipur Assessment - Year 2008, Source; http://satp.org/satporgtp/countries/india/states/manipur/index.html as on March 2, 2009

15 16

Sadin, (Assamese weekly), May 14, 2009 Assam tribune January 3, 2008 17 The term disturbed areas is not defined anywhere in the Act. It depends on the satisfaction of the state machinery.
18

Total cadre strength of 25 active militant outfits in the region in 2008 was 17,000. Teresa Rehman, Armed Forces Powers) Act, Tehelka Magazine, Vol 5, Issue 35, Dated Sept 06, 2008,

(Special
19

http://www.tehelka.com/story_main40.asp?filename=cr060908ArmedForces.asp as on February 13, 2011 Desai, Dhruv "Sexual Harassment and Rape Laws in India", http://www.legalserviceindia.com/articles/rape_laws.htm ACHR Review, a publication of Asian Centre for Human Rights, September 17, 2007, www.achrweb.org The Armed Forces (Special Powers) Act - Repressive Law, Combat Law: The Human Rights Magazine, vol. 2 (1), accessed on June 14, 2008
20 21

April/May, 2003 as quoted in Getting Away with Murder: 50 Years of the Armed Forces (Special Powers) Act, New York: Human Rights Watch, August 2008 -- http://www.hrw.org/backgrounder/2008/india0808/india0808web.pdf -- pp. 8-16 as on October 3, 2008
22

Naga

Peoples

Movement

for

Human

Rights

Vs.

Union

of

India

1997,

http://www.manupatrainternational.in/supremecourt/1980-2000/sc1998/s980906.htm as on March 20, 2010

23 24

The full report is available on www.manipurfreedom.org and the Hindu website www.thehindu.com See the Concluding Comments of these bodies available at www.ohchr.org, www.wcd.nic.in and CCPR/C/79/Add.81, 4

August 1997, http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CCPR.C.79.Add.81.En?OpenDocument as on September 13, 2008

25 26 27

Interview with the family members of Manorama on June 2, 2008 and August 19, 2008 Gauhati High Court Writ Petition No 549 of 2003, Assam Interview with Arubi Devi on August 17, 2008 at her residence in Imphal, Manipur Source: Lilabati Baishya Vs. State of Assam & Others, Decided on 26 March 2004 by Gauhati High Court Interview with Maniki Bezbaruah and her family on June 28, 2008 at her residence in Nalbari, Assam. http://fateh.sikhnet.com/Sikhnet/discussion.nsf/ca32680024ff68b487256a08007e86d8/78c8a7e0db9049578725665e007e0 37 women raped in Barpeta, The Sadin, Assamese weekly, May 11, 1991 Rape is a civil offence under Section 69 of the Army Act, 1950 Rape is an act of prejudicial to good order and military discipline, Section 63 of the Army Act, 1950

28
29

30

2e8!OpenDocument.
31 32 33