Humiliating and degrading treatment under international humanitarian law: criminal accountability, state responsibility, and cultural considerations.

• Author: Erikkson, Stephen

The enemy pursues me, he crushes me to the ground; he makes me dwell in darkness like those long dead. So my spirit grows faint within me; my heart within me is dismayed. (1)

1. INTRODUCTION

   At some point in their military career, judge advocates serving in the United States Armed Forces can expect to hear the question: "What does the ban on humiliating and degrading treatment actually mean?" In the interests of self-preservation, forward-thinking soldiers, sailors, airmen, and marines want to know the limits of what they can do to enemy prisoners of war and unfriendly civilians--as well as the limits of what can be done to them if seized by opposing forces. Article 3 common to all four 1949 Geneva Conventions, hereinafter referred to as common article 3, states,

   ...Persons taking no active part in the hostilities, including members of the armed forces who have laid down their arms and those placed hors de combat [out of combat] by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and at anyplace whatsoever with respect to the above cited persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court ... (2) For military members acting as captors, the morally-correct, short answer to the question posed, expressed as a positive obligation, is as follows: treat all persons not participating in hostilities with the same respect that you would hope to be treated if you were captured or detained under the same circumstances. This advice is based on the widely accepted, moral principle: "Do to others as you would have them do to you." (3)

   Unfortunately, at this time, providing an equally succinct legal response is problematic, as even application of this great moral principle may not provide protection against legal liability in all cases. The line between legitimate and illegitimate acts causing humiliation is not clearly fixed--as timings of helplessness and humiliation may arise in any human being subjected to private residence searches, seizure at gunpoint, stark detention conditions and/or intense questioning in unfamiliar settings. Cultural expectations and levels of tolerance can also vary dramatically between individuals, groups, and nations. Certain practices unlikely to humiliate U.S. forces--such as being shaved or having to shave (4)--may, in fact, be considered humiliating to U.S. enemies or others of questionable status who find themselves under U.S. control. (5) How, therefore, are sincere men and women of conscience to understand the absolute ban on humiliating and degrading treatment in a multicultural world thick with clashing personalities, beliefs, and values?

   In an era marked by ethnic warfare, international conflict, and state-sponsored terrorism, (6) this issue must be squarely addressed. The ban, first of all, cannot possibly be absolute. International humanitarian law explicitly permits warring parties to engage in certain acts regardless of whether they happen to cause hors de combat enemy personnel to experience feelings of humiliation. During periods of captivity, enemy combatants can be deprived of deeply cherished items "for reasons of security." (7) U.S. forces, for example, could surely confiscate a Jambiya, a curved, double-edged dagger worn openly by some Arab men, notwithstanding the latter's lack of consent or angry complaints of humiliation.

   U.S. forces could also serve religiously-forbidden meats to captured combatants "to prevent loss of weight or prevent nutritional deficiencies" provided U.S. forces "account" in advance for "the habitual diet of the prisoners" and had no other suitable protein sources available at the moment when the prisoners needed to eat. (8) If U.S. forces served such meat to prisoners under these circumstances, some proportion of prisoners would undoubtedly complain of humiliation, and public outrage would likely be voiced by coreligionists worldwide. The primary obligation of U.S. forces, however, is to keep prisoners "in good health," (9) and no amount of humiliation should result in a breach of international law if U.S. forces are, in fact, protecting the good health of prisoners while pressing daily for delivery of culturally-acceptable substitute foods. "Account shall ... be taken of the habitual diet of ... prisoners" requires U.S. forces to consider cultural dietary concerns in the midst of competing concerns. (10) It is a requirement not callously to ignore cultural dietary concerns as opposed to an unyielding requirement to satisfy cultural dietary concerns at all times without any possible delay or excuse. (11)

   Consequently, the ban against humiliating and degrading treatment may appear to be absolute, but it clearly is not. In all internal and international conflicts, some degree of humiliation will normally be experienced by persons hors de combat, deprived of liberty or otherwise restricted in their freedom of movement or choice. Where then are the lines of legal liability? When should an individual be held criminally accountable, or a state be held civilly responsible, for violating the terms of this core provision of international humanitarian law? This article takes the position that in heated cases involving charges of humiliating treatment, criminal accountability and state responsibility should both be determined based on the specific intent of the official or officials engaged in the suspect conduct. Detractors may find this approach insufficiently protective of human dignity, but overall, it offers the greatest protection without sacrificing fundamental fairness. This approach allows for serious consideration of legitimate state concerns and individual cultural influences while remaining ever faithful to the spirit of common article 3 and essential human interests.

   This article is divided into two parts. Part I of the article examines approaches to the humiliating treatment prohibition taken by the International Criminal Court and the International Criminal Tribunal for the former Yugoslavia and critiques them as good faith efforts that raise significant fairness concerns. Part I proposes two different offenses for future use in criminal prosecutions, justifies the elements as more consistent with Geneva Convention values, and discusses the offenses in relation to state responsibility. Part I will not resolve all ambiguity inherent in the international humanitarian law prohibition, but it should make the provision more intelligible for those required to comply with it. Part II will then examine two reported incidents of culture clash involving heated claims of humiliating treatment: the contested shaving of Taliban and Al Qaeda detainees sent to Guantanamo Bay and the postwar frisking of female Iraqi civilians by male American soldiers in occupied Iraq. For each incident, the article will delineate circumstances under which legal violations can reasonably be found to occur and not occur.

2. WHAT IS HUMILIATING AND DEGRADING TREATMENT?

   1. Scope and Meaning of the Minimum Standard

      The International Committee of the Red Cross (hereinafter ICRC) stresses that "©are [was] taken to state, in [common] article 3, that the applicable provisions represent a compulsory minimum." (12) To protect human dignity, neither governments nor rebel factions may legally derogate from this minimum standard. In examining the types of nefarious acts prohibited by common article 3--all kinds of murder, mutilation, torture, cruel treatment, taking of hostages, and extrajudicial punishment--humiliating and degrading treatment is the only misdeed conspicuously absent from the list of Convention grave breaches. (13) Among the proscribed practices, it is comparatively the least severe, or so it would appear. The humanitarian prohibition against humiliating and degrading treatment, in this way, apparently mirrors the human rights prohibition against degrading treatment as "perhaps the lowest level of [dignity] violation possible...." (14)

      Interestingly, in deciding degrading treatment cases arising under the European Convention for the Protection of Human Rights and Fundamental Freedoms, (15) the European Court of Human Rights has indicated that such treatment "must [have] attain[ed] a minimum level of severity." (16) The Court, however, has yet to articulate a method for predictably determining this minimum level of severity. In the words of the Court,

      The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as duration of the treatment, its physical or mental effects, and in some cases, the sex, age, and state of health of the victim, etc. (17) States and victims continue to wonder what minimum threshold must be reached to trigger a violation that mandates relief.

      The Court provided some insight into the level of this threshold in its landmark Ireland v. United Kingdom decision. (18) To combat the violent terrorist campaign in Northern Ireland in the early 1970s, the United Kingdom government began using five particular techniques as an aid during interrogations. The techniques included:

      [(1)] wall standing: forcing the detainees to remain for periods of some hours in a 'stress position,' described by those who underwent it as being 'spread-eagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on...