The Mass Rape of Poshpura & Transitional Justice Possibilities in Indian Kashmir

The Mass Rape of Poshpura & Transitional Justice Possibilities in Indian Kashmir

By Lark Escobar


This paper explores the allegations of the 1991 mass rape at Posh Pura, in Indian Kashmir and the subsequent status of transitional justice regarding this incident.  It further explores the legal posture that enabled such an incident to occur and the subsequent domestic legal developments.  It further evaluates if this incident might qualify as an act of genocide under international law.  It concludes that this incident appears to meet the criteria for classification as genocide and calls for international intervention to increase the possibility of transitional justice for the alleged victims.   

Case Facts

The alleged mass rape of Kunan Poshpora is an event that inflamed radicalism in Indian Kashmir (J & K).  On February 23, 1991, the Indian army set up a cordon under the guise of a necessary crackdown on hiding insurgents, but on this night, the crackdown was different.  

After 9 p.m., the 4th Rajputana Rifles/68th Mountain Brigade (125 soldiers) removed all males from their homes at gunpoint[1] and made “interrogation centers” in barns and shacks.[2]  Detained village men were brought there where they were allegedly physically and sexually tortured,[3]  including applying electricity to the detainees’ genitals.[4]  Identified army personnel included Commander Dalal, Dr. Sundhar, and Captain Mahajan, among others.[5]  

 While the village men were held bare-chested and barefoot in the snow, other troops forcibly entered homes and allegedly gang-raped 23 women, and are accused of molesting ~100 others. [6] [7] [8]  

Those men not being interrogated inside the “interrogation centers” were drenched in cold water or beaten with farming implements and poles (lathis).[9]  There are 200 pages of victims’ detailed statements collected by police.[10]  The compelling evidence appears to be both ample and substantiated.  

One source reported that the screams of the women were heard throughout the night as they were being assaulted.[11]  The girls’ medical examinations revealed  physical evidence of sexual violence consistent with their statements.[12]  Despite the serious allegations, it took the Kashmiri police seven days to collect statements from victims.[13]  Some women were raped, but were reticent to be examined by male doctors- and some families would not allow men to examine the most sensitive areas of the bodies of the female victims.  

In Kashmir and greater India, socio-cultural and religious customs prohibit females from having physical or sexual contact with males (outside marriage) and contribute to the exploitation of women that enables perpetrators to evade accountability for sexually-based crimes.  Some taboos are so powerful, that women victimized in the post-partition period were killed by their own family members because the women and girls lost social status (perceived honor), due to the assaults.[14]   No gender-sensitive reporting or investigation mechanisms were established to ensure all victims could safely and privately report their victimization and seek justice.  

Domestic Law

Indian security forces have harassed, raped, and tortured both hostile and non-hostile civilian women and were shielded by law- the Armed Forces Special Powers Act(AFSPA).   Essentially, this law ensured that the army had carte blanche to pursue any means they deemed necessary for military objectives— including international human rights violations and IHL violations.  It created criminal immunity affording a special “protected” status for Indian security forces from any prosecution for war crimes, genocide pogroms, or other atrocities.[15] [16]  

This law was finally repealed in 2016, but it took extreme international pressure to create the requisite impetus to revoke it. A second controversial law in Kashmir is Public Safety Act (PSA), of 1978.[17]  This act enables authorities to detain Kashmiris for two years without trial.  The purpose of the law is  to prevent individuals from acting in any manner that is prejudicial to “the security of the state or the maintenance of the public order.” [18]  The act gives the security apparatus total discretion in detentions, which may occur simply as a reprisal for trying to resist sexual-based violence committed by the military, or for attempting to report such incidents– effectively ensuring that victims systemically lack access to domestic avenues of justice.  

International Human Rights Concerns

            The Universal Declaration of Human Rights (1948) ensures the personal safety, right to live, right to participate in the cultural life of an individual’s community, and access to medical care.[19]   Additionally, Article 5 prohibits torture, degrading treatment, or cruel punishment, Article 7 prohibits legal discrimination (on the basis of caste, class, age, gender), Article 9 prohibits arbitrary arrest and detention, article 10 ensure the right to a fair trial, Article 12 prohibits interference with honor and reputation (rape victim stigma), and Article 30 prohibits any state government from depravation of these universal rights.[20]   Clearly, the Indian legal code was in conflict with these tenets of international law by creating legally-shielded space for human rights violations.  

            Further, the fourth Geneva Convention (1949) and Additional Protocols I & II (1977) protect civilians in both peacetime and active hostilities.[21]   Although India is not a signatory of the Additional Protocols, the 2005 ICRC study found that the legal standards of the Additional Protocols are considered international customary law, to which India is bound. This corpus of law prevents the abuse of civilian populations and supersede any internal domestic legislation providing special protections for the security forces. 

            The most serious international legal consideration stemming from this incident is the potential qualification of the act as genocide.  According to the Office of the UN Special Adviser on the Prevention of Genocide (1948), genocide is defined as

Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: 

  • killing members of the group; causing serious bodily or mental harm to members of the group; 
  • deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 
  • imposing measures intended to prevent births within the group.[22]

This is the definition of genocide adopted by the statutes of international legal bodies is substantiated by the rules of customary international law.[23] [24] [25]  Two genocide researchers, Glanville (2009) and Irvin-Erickson (2016), further clarify that the intent to destroy lives by physical harm or harm to cultural identity and practices are acts of genocide—these acts show clear intention of national destruction.  Moreover, they conclude that deliberate attempts to violate these rights are illegal.  Not only is the proverbial letter of the [genocide] law to be followed, but the spirit of the law is essential. These grave violations appear to pass the test as calculated, intentional acts of genocide.  

Transitional Justice Efforts 

            After 30 victims demanded justice, Deputy Commissioner Yasin initiated an inquiry in March 1991.  This inquiry was sent to all levels of administration and the media.  The army also launched an internal investigation headed by Commander Sharma.  He interviewed victims and decided they were making false allegations[26] that were simply anti-army sentiment.[27]   This became known as the “militant hoax theory.”[28]  

            On March 18th, Divisional Commissioner Habibullah, further covered up the activities instead of conducting an inquiry in good faith.  He interviewed the accused officers and admits there may have been incidents of abuse.[29]   ACrisis and Credibility report was issued at the behest of the Indian army, which relied on the reports of the military personnel involved (excluded hospital records and victim statements) and concluded that the allegations were baseless.[30]  Human Rights Watch suggested the report lacked credibility due to extreme procedural failings.[31] [32]

            In May 2013, the J & K State Human Rights Commission filed a case regarding the incident with 50 women named in the petition.  Police claimed that the case was untraceable, due to the length of time between the incident and the filing.[33]  The case was refiled.  Substantiated cases were to be awarded 100,000 rupees (~1,350 USD).  It is unclear if any victims were compensated.[34]  22 years after the incident, the Foreign Minister of India, Salman Khurshid, acknowledged the incident and implored the Kashmiri victims to forgive and forget.  


 An independent, international transitional justice mechanism would be appropriate so victims can be restored to wholeness.  Although the official acknowledgment from the Indian government mattered, it was impotent due to the lack of formal apology irrelevance of the official.  Justice demands the Prime Minister formally and publicly apologize to the impacted families in Kunan Poshpora.

Works Cited

[1] Batool et al., Do You Remember Kunan Poshpora? (New Delhi, India: Zubaan, 2006).

[2] Batool et al.

[3] Batool et al.

[4] Batool et al.

[5] Batool et al.

[6] Barbara Crossette, “Indian Moves Against Kashmir Rebels,” April 7, 1991,

[7] “Kashmir Mass Rape”, 2017;

[8]  Urvashi Sarkar, “Kashmir: A Look at the Kunan Poshpora Rapes,” Human Rights News (Al Jazeera, December 24, 2016),

[9]  Batool et al., Do You Remember Kunan Poshpora? (New Delhi, India: Zubaan, 2006).

[10] Batool et al.

[11] Omar, M. “26 Years After Kunan Poshpora, Army Still Enjoys Immunity For Sexual Violence.” The Wire, February 23, 2017.

[12] Batool et al.

[13] Batool et al., Do You Remember Kunan Poshpora? (New Delhi, India: Zubaan, 2006).

[14] Ritu Menon and Kamla Bhasin, Borders & Boundaries Women in India’s Partition (New Delhi, India: Women Unlimited, 2011).

[15] M. Omar, “26 Years After Kunan Poshpora, Army Still Enjoys Immunity For Sexual Violence,” The Wire, February 23, 2017,

[16] M. Omar.

[17]  Kaunain Sheriff M, “Explained: What Is Jammu and Kashmir’s Public Safety Act?,” The Indian Express, September 17, 2019,

[18]  Kaunain Sheriff.

[19] United Nations, “Universal Declaration of Human Rights,” United Nations (United Nations, 1948),

[20] United Nations.

[21] Geneva Conventions, “The Geneva Conventions and Their Commentaries,” International Committee of the Red Cross, July 9, 2020,

[22] United Nations, “Convention on the Prevention and Punishment of the Crime …,” 1948,

[23] Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, supra note 12, arts. 2, 4, 5.

[24] Statute of the International Criminal Tribunal for Rwanda, supra note 20, art. 2.

[25] Rome Statute of the International Criminal Court, A/CONF. 183/9, art. 6 (July 17, 1998), available at +Statute.htm.

[26] Batool et al., Do You Remember Kunan Poshpora? (New Delhi, India: Zubaan, 2006).

[27] Batool et al.

[28] Batool et al.

[29] Batool et al.

[30] Batool et al.

[31] Batool et al.

[32] Human Rights Watch, “The Human Rights Crisis in Kashmir,” Human Rights Watch, January 26, 2009,

[33]  Batool et al., Do You Remember Kunan Poshpora? (New Delhi, India: Zubaan, 2006).

[34] Thomson Reuters, “Mass Rape Survivors Still Wait for Justice in Kashmir,”, March 7, 2012,

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