ISSUE 18

This excerpt is from an ongoing project that has been initiated by Zubaan. The overall objective of the project is to bring together the collective knowledge of South Asian academics, researchers and activists on the difficult subject of sexual violence and impunity and to create a body of solid and multi-faceted knowledge about this important subject in order to show the way towards beginning a meaningful, nuanced and practical dialogue on peace and justice.

Recent histories and contemporary political developments in the various countries in South Asia have shown an exponential increase in sexual violence, particularly mass violence. Even as the incidence of sexual violence – whether during the Partition of India in 1947, or the liberation war of Bangladesh in 1971, or more recently in the internal and cross border conflicts in all South Asian countries, or indeed in insurgent movements across the region –  has increased, so has the ever deepening and deafening silence around it.

The end of violence in Sri Lanka for example, has not resulted in a frank and open discussion about the use of sexual violence as a weapon of war; the Bangladesh War Crimes Tribunal of 2009 makes no mention of the question of rape despite the fact that it is widely acknowledged as having happened, and despite women having spoken out about it.

Silence is not the only issue here, for crucial to maintaining the silence is the active collusion of the State in providing impunity to perpetrators, sometimes under the guise of protective laws, sometimes under the guise of nationalism. So heavily are the odds stacked against women here, that very few dare to speak out, especially in a context where culturally the odds are in any case stacked against women. Backed by culture, and strengthened by the State, and often with the active collusion of non-state actors, the state of impunity then, remains largely unchallenged.

Are these conditions particular to the South Asian region? Elsewhere in the world, rape is increasingly being discussed and accepted not only as a weapon of war, but also as a crime against humanity and as an instrument of genocide. In the 1998 Akeyesu judgement by the International Criminal Tribunal for Rwanda (ICTR), the first landmark case on sexual and gender-based violence in international criminal law, the international criminal tribunal provided a clear definition of rape and delineated the elements of rape as a crime against humanity and as an instrument of genocide. Under this case, the definition of rape advanced from simply ‘non-consensual intercourse’ to rape and sexual violence as a physical invasion of a sexual nature, committed on a person under coercive circumstances and as part of a widespread or systematic attack on a civilian population discriminated on national, ethnic, political, racial or religious grounds. It has also been regarded as a form of torture, thus de-emphasising its stigmatised nature in popular perceptions.

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) brought a particular form of sexual violence prevalent in the conflict in Sierra Leone – forced marriages – into the jurisprudence of violations of international humanitarian law. In this case, forced marriage was distinguished from sexual slavery or sexual crime 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) include 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 sterilisation and prosecution on account of gender as specific crimes punishable under the statute.

The progressive thinking developed in the course of these trials has brought sexual violence into the mainstream of international jurisprudence which was largely invisible until the 1990s. It is now part of the collective knowledge to which women’s movements worldwide have contributed enormously. In South Asia, a comprehensive and critical analysis of existing jurisprudence on sexual violence is a newly emerging area of scholarship and practice and a solid community of practice is still to emerge in this field. There are many dimensions of sexual violence which remain unanswered/unexplored. They range from conceptual clarity on definition of sexual violence, to legal, medical and forensic understanding of evidence gathering, and monitoring of the evidence gathered.

Should South Asia not learn from the 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 squarely placing rape and sexual violation at the centre of 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? How can we think creatively about questions of reparation beyond the ways states in the region have done by ghettoising women in rehabilitation camps where they remain stigmatised and marked as raped women to be separated from others as we saw in the post partition and post 1971 relief measures.

As feminist activists and academics we have been concerned not only at the growing violence but also at the serious and continuing lack of accountability on the part of States and governments, the failure to address the impunity enjoyed by perpetrators, the 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. We feel that our collective inability and unwillingness to address the profound impact of such violence is a serious impediment to peace in our region.

In January 2012 a small group of women from South Asia began a process of thinking about these issues.¹ We were concerned not only at the legal silences around the question of sexual violence and impunity, but also how deeply the ‘normalisation’ of sexual violence and the acceptance of impunity, had taken root in our societies. This, despite the many attempts that had been made by women’s movements across South Asia to bring this issue to public attention.

Despite the fact that women’s movements have made important contributions in bringing the issue of sexual violence and impunity to public attention, at the very outset, we are confronted with significant knowledge gaps. In South Asia there has been little critical analysis of existing legal factors; jurisprudence on sexual violence is an emerging area, and a critical mass of people working on this issue has only just begun to build up. There are thus many dimensions of sexual violence that remain unexplored and unexplained. Indeed, the very first step is to look at exactly how sexual violence can be defined, and on this, even among feminist groups, there remains much to be learnt, including whether sexual violence relates only to women or whether it includes men as well (an issue that came sharply to light after Abu Ghraib but that has long been swept under the surface of what we do know). We realised that little was known about the important and crucial aspect of evidence gathering – how it should be done – and interpretation. Most cases of sexual violence that are reported, for example, fall through because of a lack of proper investigative procedures, Not only do investigative machineries use obsolete methods such as the two-finger text, but they also remain insensitive to and ignorant of new ways of examining cases of sexual violence.

An absence of adequate literature on the subject is the first problem that confronts us. By this we do not mean that there was nothing available. 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. As well, much of what is known about the nature of impunity and how it functioned on the ground, is not documented but remains in the minds of people who are actually in the field, who are investigating, and who are working in the movement. We feel it would be useful to gather information about what the nature of impunity is, what the silences and what the legal, social and cultural norms which the State draws upon to enable and allow impunity for the perpetrators and to silence the demands for accountability are. Not much of this is documented. As well, it is important to document also the lesser known ways in which women, and sometimes communities, create structures to deal with the trauma and dislocation caused by sexual violence. These are the smaller stories that remain 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. This, too, needs to be documented.

While these were some of the questions that informed our discussions in January 2012, there are also abundant cautions. In recent histories of sexual violence in South Asia, feminist interventions have helped to bring to light things that would otherwise remain unspoken. Whether it is with histories of the Partition of India in 1947, or the Bangladesh war of Liberation in 1971, or the subsequent issues of the violation of the rights of people in the Chittagong Hill Tracts, or the war in Sri Lanka, the Maoist insurgency in Nepal, or indeed the ongoing conflicts in Kashmir, India’s northeastern regions, Baluchistan, Swat and other places, incidents of mass sexual violence have been brought to light by feminist academics and women’s groups. States have done little or nothing to even acknowledge this. Much of what women have learned has been based on oral testimonies and witness accounts, and here, a range of ethical questions enter the picture. How, in order to bring these issues to light, can the interests of the victims/survivors be protected, how can they not be made vulnerable? How, in the interest of documenting, can the need and importance of justice be established? And further, what does justice comprise? Is it only punishment for the perpetrators – assuming they can even be identified, or can it go further, and look at the question of compensation, reparations, acknowledgement, apology?

To us, the exercise of exploring the nature of such violence and the impunity and lack of accountability that accompanied it, became important also as a moral responsibility that we bore as feminists to hold States accountable and responsible for their willful blindness and refusal to recognise the principle of equality to which all States in the region are, on paper, committed, but which none has in practice recognised or implemented. Further, we feel it our responsibility to refuse to allow every uncomfortable question to be brushed under the carpet of nationalism, and to not question the assumptions of nation states and their notions of citizenship. For us, the important question is simply this: why is it that certain groups of people – in this particular instance those who are the targets of sexual violence – are never considered deserving of their rights, and why is it that others, the perpetrators, are encouraged, often enabled, to continue to perpetrate violence and are almost never held accountable.

This project aims to study both the history and current prevalence of mass sexual violence in South Asia. Our assumption is that although there is a general awareness that such violence not only exists but is on the increase, there is very little knowledge about it. Knowledge gaps relate not only to the histories of such violence, but also to their impact on society, their economic and social costs, as well as to the difficulty of gathering evidence (for example medical and forensic), of implementing legislation where it exists, or providing justice, and indeed of finding ways and means to acknowledge the suffering caused by violence, and ensure that it is not repeated.

Further, the project is premised on the fact that while South Asian countries have all too often remained divided because of geo-political considerations, the women of South Asia have often come together to share experiences and knowledge and to discuss a wide range of issues. By collaborating on this subject and bringing our collective and comparative knowledges to bear on it, we hope not only to learn from each other but also to show a way towards beginning a dialogue of peace, on a difficult subject, albeit an important one.

The project will not stop at gaining knowledge. We expect to build a formidable body of cutting edge research, but also, in doing so, to build a community of new, young and committed researchers who will bring fresh insights to bear on their work. We hope to put this community in touch across South Asia, thereby strengthening the process of dialogue and peace making. We plan to further disseminate the findings of this project through books and other media, and to use this to further our advocacy and lobbying work with States and governments so that the issue of sexual violence and impunity is given the attention it deserves.