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

Air Force Law Review, Spring, 2004 by Stephen Erikkson

To speak of lower and upper limits of humiliation is not particularly meaningful.

Dr. Eugen Kogon, a German survivor of Buchenwald concentration camp, which contained both enemy prisoners of war and other "social undesirables," described in a 1945 manuscript the process of humiliation and degradation that many Buchenwald newcomers were compelled to endure. (35) Dr. Kogon relates that officials would question newcomers as to why they had been delivered to the camp, and when they failed to explain why--for indeed many newcomers did not know why--they received blows from a stick. (36) Jews almost without exception received blows as punishment for being Jewish. (37) Camp intake officers also made newcomers stand and respond to questions while five other officials, purposely pounding typewriters, shouted in the room. (38) In this tense atmosphere, intake officers asked, "What whore shit you into this world?" (39)

These steps were only the beginning of initiation into Buchenwald camp. After threatening prisoners twenty to thirty times with the death penalty for an endless number of so-called crimes, officials made prisoners strip. (40) They were shaved from top to bottom and front to back with poor quality clippers and led to a bathing area. (41) After bathing in hot or cold water according to their whim, prisoners were escorted naked--and in freezing temperatures during winter--over camp streets and parade grounds to the wardrobe office. (42) There, they were disinfected with a liquid that burned the injured parts of the skin and made to bend over for a body cavity inspection from which officials derived a perverse sense of pleasure, especially with respect to prominent persons. (43) Officials ended by throwing raggedly clothes at prisoners with "no consideration as to [their] size, durability, or particularities...." (44)

This initiation ritual for Buchenwald prisoners obviously cannot be characterized as a good faith effort on the part of Nazi officials to balance state interests with prisoner dignity. The larger point to grasp, however, is that international humanitarian law ought not to distinguish between "major" and "minor" acts of humiliation for the purpose of eliminating the latter from consideration as a legal violation. Although humiliation appears to be a universal experience, any theory of human dignity must take into account that, as unique individuals, we are not all likely to experience humiliation at the same time in the same way in response to the same stimuli. The law ought not to invalidate a man, woman, or child's personal experience with humiliation with dismissive terms like "unduly delayed reaction," "unconvincing," or "insufficiently severe." As a general rule during periods of armed conflict, international humanitarian law should accept victim expressions of humiliation at face value.

In Buchenwald concentration camp, some prisoners may have felt overwhelmed with humiliation at the mere sight of the depressing camp. Others may not have felt humiliated until they were threatened or struck. Still others may not have felt humiliated until they were stripping, bathing, or dressing. And some may have never manifested any effects of humiliation due to an apparent indomitable sense of dignity. With respect to this last group, reasonable persons worldwide may legitimately ask: were such prisoners degraded--brought down to such a level that similarly situated prisoners (lacking this indomitable sense of dignity) would likely have been humiliated by such treatment?