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

Air Force Law Review, Spring, 2004 by Stephen Erikkson

A specific intent approach to the prohibition against humiliating and degrading treatments is fairer to potential wrongdoers--confronted with an indistinct offense--and more protective of certain potential victims, whose legitimate cries for justice might otherwise be dismissed as falling short of "serious humiliation." (73) A specific intent approach is also more consistent with Geneva Convention values. Within the vast expanse of humiliating, and potentially humiliating, acts and words, some reasonably intelligible parameters can be placed on the common article 3 prohibition through acceptance of the following offense:

   Whosoever, with intent to act maliciously, intent to gratify
   sexual lust or desires, or intent to obtain an unofficial benefit,
   humiliates or attempts to humiliate, during a period of
   occupation or armed conflict, an individual taking no active part
   in hostilities, commits an offense.

A conviction under this offense would require proof beyond a reasonable doubt that ...

1. The perpetrator intentionally committed an act or omission.

2. The act or omission humiliated one or more individuals or would have likely humiliated similarly situated individuals.

3. The perpetrator was aware that those subjected to the act or omission were noncombatant civilians, religious personnel, medical personnel, or disarmed hors de combat military members, taking no active part in hostilities.

4. The perpetrator committed the act or omission with the intent to act maliciously, to gratify sexual lust or desires, or to obtain an unofficial benefit.

5. The act or omission occurred during a period of occupation or armed conflict and was associated with the occupation or armed conflict. (74)

Like the black letter law human rights prohibition against degrading treatment, the black letter law humanitarian prohibition against humiliating and degrading treatment is susceptible to two doctrinaire interpretations: (75) one sweeps too broadly, the other too narrowly. The first, which would establish criminal accountability based solely on the presence of humiliation, sweeps too broadly. The second, which would always make criminal accountability dependent on an intent to humiliate, sweeps too narrowly. Prudence dictates instead that "protective categories" be recognized, and that persons be punished who, adequately forewarned about acting on a set of impermissible intents, choose to so act anyway.

For the sake of human dignity worldwide, persons of integrity should everywhere be able to agree that warriors must not (1) act maliciously to cause humiliation; (2) cause humiliation by exploiting another human being sexually; or (3) traffic in, or otherwise personally profit from, the humiliation of others. Outside these protective categories, sensitive, contested cases of humiliation--if and when they arise--are matters for political discussion between concerned governments, non-governmental organizations, and private citizens, each voicing their thoughts in appropriate diplomatic and domestic fora. Inside these protective categories, the legal protection is absolute, and compelling cases can move forward for prosecution regardless of the severity of the humiliation.