This post by PSRP Researcher, Fionnuala Ní Aoláin, was first published by Just Security on 1 June 2016. Click here to view the original blog on the Just Security website.
A number of weeks ago it was revealed that CIA operatives systematically photographed detainees who were being held as part of the “war on terror” while naked. It appears that the photographs were taken of individuals without any clothing, of individuals naked while blindfolded, and naked with CIA officers posing alongside their bodies. The detainees were then rendered to other states for interrogation and/or further detention. The revelation that such photographs exist is deeply controversial and brings into further disrepute the actions of CIA staff, highlighting the depravity and inhumanity of the detention practices pursued by the United States. The existence of such photographs underscores the ways in which pornographic vignettes continue to be revealed in the detention regime, and provokes deep unease about the motivations, rewards, and culture that pervaded the detention system.
The existence of these photographs also raises important international law questions about how we understand sexual violence, sexual coercion, and sexual violation in the context of detention. The existence of nude photography of (we presume) mainly Muslim male detainees further exposes the systematic integration of sexual humiliation in the detention process. The fact that these harms were experienced by male detainees makes them no less sexually coercive than had they been experienced by female detainees. The revelations force acknowledgement of the vulnerability of male bodies in conflict, and ought to incite greater attention to the protection of male (and female) bodies from sexually explicit practices while in the custody of the United States.
Disavowing sexual harm has been at the forefront of international law’s development in the past three decades and the notion of state responsibility for sexual violence has expanded. Given the US’s rhetorical lead in the campaign to end sexual violence in conflict, US-espoused responsibility is not merely a product for export but applies to the practice of US military and civilian personnel.
Attention to forced nudity is a relatively new phenomena. In my early work exploring the gendered dimensions of harms to women during the Holocaust, I identified how forced nudity prior to death in the gas chambers was a particularly heinous violation of the dignity and sexual integrity of civilian women (distinctly so when many of the women being stripped of their clothing were religiously observant Orthodox Jews). In the aftermath of World War II, the Nuremberg and Control Council Law trials paid little attention to these harms (though rape was charged in the Tribunal for the Far East). Since that time, thanks to a considerable body of transformative gender jurisprudence from regional human rights systems and the ad hoc tribunals for the Former Yugoslavia and Rwanda, we have a far more nuanced understanding of the scope and content of sexual violence and its multiple permutations.
While the ad hoc international tribunals have never held per se that photographing a prisoner naked is torture or cruel, inhuman, and degrading treatment there is a solid jurisprudence on the harm of forced nudity and explicit recognition that this practice is a breach of both human rights and humanitarian law standards. In Akayesu, the International Criminal Tribunal for Rwanda (ICTR) found liability for a variety of crimes, including sexual violence and inhumane acts, as crimes against humanity. The court referenced the forced undressing of a victim and a young girl being forced to perform gymnastics naked in a public courtyard as a crime against humanity. Notably, Akayesu held that coercion might be inherent when military personnel are present and physical force does not have to be shown to prove coercive circumstances. The fact that CIA photography was conducted inside a prison, does not lessen the public humiliation given the “public” element involved in parading detainees naked in front of military and intelligence officials. An obvious reference point before one even gets to sexually humiliating photography is that prisoners cannot be photographed except for extremely limited circumstances relating to a need connected to detention, and any act that compromises a detainee’s dignity is explicitly forbidden by both human rights and law of armed conflict standards.
The photographs have been described by a former US official as “very gruesome.” The CIA claims to have taken these photographs to protect service members from claims of mistreatment before transferring the detainees. This “protection” defense has little traction given the cogent jurisprudence on detainee dignity where the core imperative is to protect the person in the custody of the state and not provide cover for egregious state behavior. At the International Criminal Tribunal for the former Yugoslavia (ICTY) for example, the Kunarac Court had a two pronged test for outrages upon personal dignity: 1) Intentionally committing an act which would generally considered to cause serious humiliation, degradation, or otherwise be a serious attack on human dignity, and 2) knowing that the act could have that intended effect.
The ICTY also set a high bar for humiliation. In affirming Aleksovki, the Court stated, “the humiliation of the victim must be so intense that any reasonable person would be outraged.” International law increasingly takes a nuanced and victim-centered approach to the experience of sexual coercion, noting that the social, cultural, and familial mores of the detainee must be explicitly contextualized in the investigation and acknowledgement of sexual harm.
It is also increasingly understood that the language that victims may use to describe the sexual dimensions of their experience will vary, and that explicit use of words like “sex,” “harassment,” and “sexual” may be limited in cultural and social contexts where such words in themselves may provoke stigma and shame to men and women, challenging their honor and status. Thus, words such as “embarrassment” and “honor” function as code words within many culturally conservative contexts for sexual harm or exploitation. Effective investigation of these violations should be cognizant of these linguistic and cultural challenges. In Akayesu for example, paragraph 687 of the ICTR’s Trial Chamber Decision notes the “cultural sensitivities involved in public discussion of intimate matters and recalls the painful reluctance and inability of witnesses to disclose graphic anatomical details of sexual violence they endured.”
We should also be aware that forced nakedness was an integral part of other parts of the US “war on terror” detention system. For example, the revelations found in the declassified 2008 Inquiry Into the Treatment of Detainees in U.S. Custody illustrates the cultural variances and effects of detainment. The report found that the
JPRA [Joint Personnel Recovery Agency]… recommended that Guantanamo Bay [GTMO] tailor punishment to maximize cultural undesirability and tailor rewards to maximize cultural desirability.
One specific consideration was the recommendation of the Legal Advisor to the Special Mission Unit Task Force conducting interrogations “not to permit interrogators to strip detainees because of the implications of nudity in Arab culture.” Notwithstanding the legal advice provided, the Inquiry uncovered a systematic subjection of detainees to techniques designed to humiliate them. These techniques went beyond any legitimate strip search, instead the interrogators were forcing detainees to undress, “bark like dogs,” and “perform tricks like dogs” in order to “reduce the detainee’s ego and establish control.” Even beyond any generic cultural idea of ego, some interrogators forced a detainee to “shave his head and beard” and wear a burka, in addition to subjecting him to a strip search, in order to “reduce his ego by assaulting his modesty” [emphasis added]. Lastly, memos reported that this particular detained individual “would be denied the opportunity to pray and described techniques to exploit ‘religious taboos,’ such as using a female interrogator in ‘close physical contact’” or touching him to induce stress.
States are no longer free to enable, tolerate, or acquiesce in practices that violate the human and sexual dignity of detainees. As such, the United States is obligated to fully and effectively investigate the allegations of such practices by its agents. Human rights compliant states are required to address allegations of ill-treatment and sexual coercion seriously with due deference to the cultural and social contexts which make surfacing and articulating claims of a sexual nature challenging for men and women. We can assume given the information in the public domain that all these detainees experienced extended isolated detention, in conditions of no access to legal or consular protection, a rotating set of male (and possibly female) interrogators, and ongoing verbal and physical intimidation including threats and the reality of direct physical violence. It is precisely within these kind of highly constrained and gendered interrogative environments that international legal standards relating to coercive sexual harm are most relevant.
Moreover, the religiously and culturally conservative reality of each detainee’s life prior to detention and interrogative is factually and legally relevant in assessing the experience of sexual coercion. We cannot ignore that many of these men were culturally and religiously conservative, and that the exposure of their bodies to other men (and women) in such circumstances would have been demeaning, humiliating, and provoked fears for their physical and sexual integrity. In the digital age, some may have been aware that the photographs could be used against them — “accidentally” released to their families and the public — inciting further shame and coercion. These revelations deserve serious attention and investigation on their own terms. Moreover, they should trigger a deeper conversation about the experience of sexual coercion for both men and women in detention. The fact that these are male bodies being photographed and that the shame, physical, and emotional harm has been done to men should not lessen our distaste and abhorrence, or give us a comfortable distance from the harms caused.