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Introduction
Aristotle has rightly stated that, “generality of law falters before the specifics of life”. It means that the mere existence of customary law which lacks in evolving the societal structure and stratification becomes egregious to the interest of people. The aim of international humanitarian law (IHL), which has almost evolved into the mantra, is that the States must protect ‘vulnerable groups, particularly women and children’ and uphold the rights of ‘the most vulnerable’. The perpetrators are not women most of the time in an armed conflict. It has been witnessed how women are the ones who get highly affected in conflict and post-conflict. These conflicts lead to sexual violence in high numbers i.e., victimization through acts of torture, involuntary disappearance, murder, rape, sexual slavery, and sexual abuse. The women are said to be more vulnerable to poverty and other inflicted harms which include loss of jobs, destruction of assets, displacement, loss or involuntary disappearance of close relatives, and disintegration.
According to the United Nations Refugee Agency (UNHCR), women constitute 49% of refugees worldwide due to conflicts and they are the ones who mostly face atrocities and hardships more than others. Such was the case of Kashmiri Pandit women that went unrecognized for thirty years and still needs to get protection from the side of the government in order to avoid further atrocities. On one hand, there has been extensive research done on the impact of armed conflict in regards to the economy, society, labor, etc. and on the other, scant research has been done on the impact of forceful migration of Kashmiri Pandit women and their respective rights.
In relation to public health, the armed conflict creates an unreasonable proportion of negative health that affects women. Women are open to threats in armed conflicts for instance; in Africa, 80% of women are involved in food production work and thus, are more likely to get attacked by land mines during the armed conflicts. The male counterparts suffer comparatively less adverse effects of conflicts than women because of deliberate gender-based discrimination and violence. For instance, when an armed conflict takes place at a national or international level, it is mostly men that stand in the forefront for military operations and either or both sides of men die in silence. The situation gets worse when women have to face the indirect consequences such as forced marriage, rape, forced impregnation, torture, coercion etc. which becomes more severe than the direct consequences faced by men. Women’s place and stance in the society at large has been constantly disadvantaged due to the already established patriarchal cultural values which is quite hard to remove from its roots. Such kind of patriarchal values are a medium through which roles and behaviors are dictated which can result in unwanted outcomes. Since women are kept out of the political and social life, they are less likely to participate in armed conflicts and hence, are financially dependent on men. Due to such scenarios, women put their mere focus on family care and social assistance, which further gives them an opportunity to do assistance work during the armed conflicts wherein they act as a backbone to support the societal structure as laborers in factories, bread earners etc. while men are at war. Therefore, women on an international and national level are said to be more discriminated and threatened during the armed conflicts and post conflicts.
Constitutional Protection of Women in India during Armed Conflict
Three decades ago, in 1990, exodus of Kashmiri Hindu Pandits took place where over 4 lakh families were rendered homeless due to the conflict in Jammu & Kashmir. After the Kashmiri Pandit community started to leave when the matter got out of hand, the CRPF forces gunned down 160 Kashmiri Muslim protesters at the Gawkadal Bridge, which is said to be the worst massacre in the history of the armed conflicts that took place at that time. These two events left the condition of Jammu and Kashmir chaotic.
In India, one of the most controversial states has been Jammu & Kashmir which had its own Constitution but after the abolition of Article 370, it has lost its special Constitutional status. Since the powers to regulate and affirm laws has been transferred to the hands of the Centre, certain aspects for the welfare of women can be brought up in this state.
The conflict between the Kashmiri Pandits and Kashmiri Muslims left a great impact on women living in that area. As it has been understood through prior contexts how the women suffer the most due to such incidents, it is much clear that protection of women is needed. The protection can be granted by the legislature under Article 15(3) of the Constitution of India. Henceforth, the government can provide special provisions for women who were devastated in this whole conflict and have faced large number of atrocities during the conflict as it has not been provided yet. Some key provisions that need to be adhered with the needs of women in an armed conflict are health and medical care, judicial guarantees, educational, recreational and work programmes for displaced Kashmiri Pandit women.
The challenges faced by women of not being able to be a part of political and economic life was conquered in Uganda and Congo where women finally forced their way through dialogues, associations, etc. Similarly, Sweden has taken action towards strengthening the protection of human rights of women who are migrants by using various multinational and bilateral meetings to emphasize the risk of increased human trafficking, lack of health care, hygiene, etc. and ensured gender equality by a new development cooperation policy framework wherein financial assistance is provided to crisis-affected people.
Protection under IHL to Kashmiri Pandit Women
While discussing the exodus of Kashmiri Pandits on the basis of cases in India, gender is often neglected. The voices of Kashmiri Pandit women are trapped in the silos of decade long oppression and lack of steps to meliorate their conditions. The summum bonum of IHL is to set limits to the violence against human life and dignity. The basic principles of humanitarian law include the principle of proportionality, principle of military necessity, principle of percolating civilians from combatants, etc. The principles of proportionality and good faith substantiate IHL as they are adopted in various legislations by States as they become customary law. Due to the ad-lib violence and thirty-one years of exile of Kashmiri Pandits, women faced atrocious crimes like rape, kidnapping and murder and the violence kept on increasing after the exodus.
Under IHL, it is the responsibility of the State to protect the right to life, such that no migrant is arbitrarily deprived of it, right to equality, right to social security, right to primary education, right to rehabilitation, etc. The despotic violation of their rights led to decades of nightmare due to forced migration during 1989-90 wherein many international institutions are silent. India is a signatory to the human rights treaties and instruments that articulate towards the protection of refugees like the Universal Declaration of Human Rights (1948), Convention on Elimination of all forms of Racial Discrimination (1965), International Convention on Economic, Social and Cultural Rights (1979), Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1984) and International Convention on Civil and Political Rights (1966).
Under Article 51 of the Constitution of India, it is the duty of the State to foster respect for international law and treaties in the dealing of organized people with one another which confers the duty on the state to configure rudimentary principles of humanitarian law. The principle of humanitarian law is to provide protection against the mass extra-judicial murders and displacement of people and confers a duty on the State towards their rehabilitation.
Women have played an important role in the struggles against the exodus. However, their role is often diminished to mere home makers rather than recognizing the sacrifices made by them. The mental and physical dogma dehors attempt towards a concord for their rehabilitation and protection of opportunities. The pernicious impact of apartheid in Africa was realized by women when their rights were percolated from essential means of development such as economic, social and political development. It was realized that mere legislations cannot solve the problems without a change in behavior and it is essential that special minority rights should be provided to women in order to express and develop their culture, establish and maintain their own association, right to education, right to opportunity, etc.
Conclusion
The three decade-long exile of Kashmiri Pandit women has stripped them off their culture, education, equality, and rights to equal opportunity and left them in silos. The Human Rights Commission confers a duty on the state towards protection and development of minorities and in particular women minorities and under the Article 51(c) of the Constitution of India, imposes a duty on the State to respect international law. Hence, under Article 15(3) of the Constitution, the State must make special legislation for the development of Kashmiri Pandit women due to the oppression faced by them amid the exodus.
The aim of humanitarian law is to eliminate and percolate the pernicious conundrum due to armed conflict on rights of women and it is essential that the State must come to a concord for the upliftment of Kashmiri Pandit women. It must take steps to rehabilitate and restore the rights of the Kashmiri Pandit women that were violated in order for protection of their culture, equality and justice.
The article has been authored by Ishita Singh, a third year B.A. LL.B. student and Jahnvi Pandey, a second year B.A. LL.B. student at UPES, Dehradun.