INTRODUCTION

“Rape is not committed by psychopaths or deviants from our social norms—rape is committed by exemplars of our social norms. Rape is no excess, no aberration, no accident, no mistake—it embodies sexuality as the culture defines it”

-Ronald Dworkin

The 1990 Bosnian war saw the emergence of mass rapes committed by men of one ethnic group against women of another. The pattern of violence inflicted upon women seemed to validate the feminist perspectives regarding the susceptibility of women during ethnic conflicts and it gave a re-birth to the understanding of mass rapes in wartime. Since then, rape is considered to be more prevalent in certain types of conflict, including ethnic conflicts, genocides, and secessionist movements. In its historical determination on the nature of rape committed during the war, the ICTY held that rapes constitute war crimes and specifically, can constitute crimes against humanity aimed at ethnic cleansing or domination. Additionally, while tracing the roots of such events, scholars identified the organizational factors over individual dynamics in driving violence against civilians and women. The recent emergence of the profoundly distressing video portraying the sexual assault of Kuki women in Manipur is reflective of the same organizational factors that drive men of one ethnicity to commit sexual crimes against women of another in events of ethnic conflicts. 

Chief Justice of India DY Chandrachud, while hearing the petition on the Manipur viral video, observed the prevalence of unprecedented crimes against women in sectarian and communal violence. While the Indian Constitution embraces everyone with the Right to Life and various other fundamental rights, in cases of ethnic conflicts the criminal justice system often suffers several setbacks leading to the breach of fundamental rights. Gender norms of society translate to gender-based violence in ethnic conflicts wherein the first victims of the failure of legal machinery are the ones with gender-unequal footing. This is exacerbated by the delayed response of the state majorly due to the inability of militaries and police to act as neutral actors in cases of ethnic conflict.

WHAT IS IT ALL ABOUT?

On May 3rd, a protest was initiated by individuals belonging to the Kuki and Naga tribes, representing some of the most marginalized communities in India, against the High Court order that could potentially lead to the inclusion of the Meitei community in the list of Scheduled Tribes. Meiteis have been historically affluent in the valley region of Manipur and have had considerable control over the economic and political levers of the state. The institutional and structural rifts rooted in the vulnerability of the Kuki and Naga tribes in the state aggravated the protest into an ethnic conflict killing 70 people and displacing 48,000 people and entire towns, including temples and churches, being set ablaze within a few weeks. So far, more than 150 people have died, and the State has recorded more than 5,000 incidents of arson.  However, one of the ugliest elements of the conflict has been the pervasive use of sexual violence against women, of which, the circulated video was but a mere part.

SEXUAL VIOLENCE AS A TOOL OF DOMINANCE

What transpired in Manipur testifies that wartime sexual violence is not an inherent cultural phenomenon but a weapon employed purposefully, highlighting the intricate interplay between ethnicity and gender. Scholarly researches reveal that in the majority of such ethnic conflicts, rape is more of a political event that serves as a strategy to humiliate and torture the enemy to claim dominance. It is based on the social marginalization of women in ethnic conflicts wherein their caste/tribal identity, and not gender identity drives the perpetration of offenses against them. Especially in a society where a woman’s standing is derived from patriarchal norms, rapes ensure the perpetuation of one identity against another, and therefore, with an utter disregard for the woman’s inherent dignity, it is often the women of dominant ethnicity who assist in effectuating the crimes. The ethnic division in Manipur exemplified this inherent tendency of dominant groups, regardless of gender, to act in furtherance of their cause, when a group of Meitei women, ironically known as the “Mothers of Manipur”, handed over an 18-year-old girl to a group of Meitei men directing them to rape and kill her.

Such perpetration is enabled owing to the existing linkage between rape and its expected outcome in cases of ethnic conflicts wherein the act involves a performance with the intention to cause a public frenzy in the target ethnicity. This challenges both the state and the victims in an attempt to psychologically deprive them of the will to respond. As in Serbian gang rapes in Bosnian detention camps, the Manipur video testifies to the same pattern of warfare where rapes and assaults were video recorded to be circulated either as pornography or for mass consumption through news or other media sources in order to succeed at the “psychological warfare” against the Kukis. The impact of this intentional attempt at causing frenzy is reflected in the fact that it was only after the Manipur video caused a public uproar that the state decided to take cognizance of the issue.

The aforementioned elements of sexual violence act as an added layer of victimization for women, wherein the failure of state machinery during the conflict and the inability of the military and police to act as neutral actors make them both the perpetrators and aggravators of sexual crimes. The structural concentration of administrative, economic, educational, and vocational power in the hands of ethnic majorities, in this case, the Meiteis, and their self-assumed ownership of the state’s landmass awards them with the power to restrict administrative attempts at ceasing the episodes of sexual violence and the conflict takes shape of a totally distinct experience for women by the virtue of inaction on the part of the state. While the Meitei women groups “deliberately blocked the routes and interfered in Operations of Security Forces” by digging up the routes of Security Forces, a delay in response time translated to offenders and rapists fleeing preemptively thus marring the victims of any access to security measures.

Therefore, in the face of intersectional inequalities, it is imperative to analyze the state’s accountability and response to the conflict on the cornerstone of equitable access to state resources for victims of gender-specific experiences of sexual crimes.

THE CHALLENGE OF ADMINISTRATION

The time between the emergence of a conflict and its transformation into a crisis is an understudied period in the evolution of ethnic conflicts. At this juncture, the law has historically been involved in settling disputes of all kinds by providing the parties with legal proceedings as a reliable alternative to self-help. Legal mechanisms could help bring an end to ethnic wars if they were to intervene at this critical juncture.

However, when attempting to analyze and provide solutions to ethnic conflicts, the Indian government failed to pay attention to the ethnic inequalities in the state’s legal forums including militaries and police forces which aggravated the perpetration of crimes. With the start of clashes in Manipur, several Meitei police officials retreated to their ethnic regions while Kukis returned to their respective regions. Moreover, due to the extent of the division, they now refer to themselves as Meitei and Kuki police. There are no remaining ‘Manipur police’; aside from a few, the force has been entirely divided along ethnic lines and a bias in the registration of FIRs has been widely observed wherein the policemen belonging to one ethnicity are refusing to register or investigate crimes carried out against another ethnicity. To exacerbate the issue, policemen have been reported to be mere spectators of the rapes, allowing the crimes to become systemic violence. 

TREADING THE LEGAL PATH

Feminist jurisprudence characterizes mass rapes as “a conscious process of intimidation” which acts as an expression of power over women and communities and is a grave violation of humanitarian laws. Gendered sexual violence infringes upon women’s right to freedom from gender-based discrimination, as stipulated by Article 14 of the Indian Constitution as well as the  International Covenant on Civil and Political Rights (ICCPR), and thus, the state is under a positive obligation to ensure the sustenance of the same. Moreover, the criminal responsibility for the commission of sexual crimes in wartime has been extended to include command responsibility under International Humanitarian Laws.

To introduce the aforesaid jurisprudence to the Indian Criminal system, the Justice Verma Committee recommended the inclusion of Section 376F within the Indian Penal Code to establish a legal framework for addressing instances of breach of command responsibility leading to sexual violence. According to the Committee, victims of mass violence must not be burdened with the responsibility of providing evidence for the impunity of public servants who neglect their duties. Moreover, in the case of Patan Jamal Vali v. State of Andhra Pradesh, the Supreme Court of India categorically observed that in cases of rape and sexual offenses, “caste, race, or identity” is not merely an add-on but has to be viewed through intersectional lens wherein the oppression emanating from economically and socially dominant position must be seen as “a result of the interlocking of different relationships of power.” In light of this, the State’s delayed and inadequate response to sexual violence, and the failure of the police to obligatorily act as first responders may pose the state itself  as the violator of its obligation to protect equal rights for women both under its constitution and the ICCPR.

Scholars have established how ethnic minorities who are underrepresented in state security forces are left politically vulnerable against the dominant groups whose command over the state’s administrative resources provides them with a grip on power. Given the disparities in access to resources, social dominance, access to adjudicatory mechanisms, and the political stronghold, it is imperative to look out for a way India can respond to ethnic clashes, in Manipur, or otherwise. Additionally, it is also essential to trace the accountability and responsibility of public servants while ensuring rehabilitation and post-conflict settlements and negotiations. Cases where the inaction of the officials in command has led to aggravation of the crimes need to be viewed through the lens of International Humanitarian standards and their failure to perform obligatory roles must be seen as a positive action towards the commission of such crime.

Treading through the path to ensure rehabilitation and reintegration of victims and communities while also bringing an end to disparities shall be a long journey. While the CBI has been entrusted with the investigations of various crimes including crimes against women and children, and 42 gender-inclusive SITs have been formed by the Supreme Court, the issue of intersectional violence and conflicts is rooted in the structural disparities that enable the perpetuation of discriminatory governance. The lacunae in state action and inadequate and delayed response shall hardly be covered for through post-conflict investigations which themselves pose serious complications including incomplete records of supplementary statements, contradictions in witness statements, and absence of medical records due to the overwhelming requirement of first aid during the conflict among many others. Thus, the Supreme Court order holds minimal relevance for the long-term resolution of potential clashes.

CONCLUSION

While the extent of justice that post-clash investigations are able to furnish remains to be seen, finding a foolproof solution to the multifaceted issue of Manipur remains a gradual exercise that shall start with greater autonomy for ethnic groups and greater accountability of the public servants. As long as tools of mass rapes and unaccountable governance are not replaced by victim-centric rehabilitation and negotiations with greater accountability, the cleavages shall persist.

The author is a third-year law undergraduate at The Rajiv Gandhi National University of Law, Punjab. His areas of interest include International Law, Criminal Law, and IPR.