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

Air Force Law Review, Spring, 2004 by Stephen Erikkson

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)

I. 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)