chapter 7 Forced Nudity
7.1 Introduction
An individual may, in a variety of settings and for different purposes, be re- quired by authorities to remove his/her clothes and remain nude for a period of time. This may be in the form of a strip-search or forced nudity. As for a distinction between the two categories of nudity, a strip-search commonly constitutes the searching of a person for weapons or other contraband in an institutional setting, requiring that the person removes some or all clothing.1 It generally does not involve the scrutiny of body cavities. It can thus be legally enforced by authorities, often in connection with prison- or detention facili- ties. To some degree it involves forced nudity, albeit for a specific purpose in performing a state function, and is thus not considered to be a form of sexual violence per se. However, the circumstances in which such searches are per- formed may constitute degrading treatment. Obligations regarding the man- ner in which such measures are performed have been adopted by the ECtHR.2 Forced nudity, on the other hand, has been considered to be a form of sex- ual violence within the field of international criminal law and is, for instance, criminalized in the Rome Statute of the International Criminal Court (icc).3
1 There is no international definition of ‘strip-search’. Each state defines it differently, e.g. Canada in R v Golden [2001] 3 s.c.r. 679, 2001 scc 83 (Canadian Supreme Court) and the us: Safford Unified School District # 1 v. Redding, u.s. 129 S. Ct. 2633, 174 L. Ed. 2d 354 (2009) (us Supreme Court). See discussion in Daphne Ha, ‘Blanket Policies for Strip Searching Detain- ees: An Interdisciplinary Argument for Reasonableness’ (2011) 79 Fordham L. Rev. 2721. 2 For example, El Shennawy v France, App no 51246/08 (ECtHR 20 January 2011); Valasinas v Lithuania, App no 44558/98 (ECtHR 24 October 2001). 3 As a form of sexual violence under the chapeau of crimes against humanity (Article 7 (1) (g)-6) and war crime (Article 8 (2) (b) (xxii)-6) of the Rome Statute. For a discussion on this issue in relation to the Rome Statute, see ‘icc Policy Paper on Sexual and Gender-Based Crimes’, The Office of the Prosecutor, icc, June 2014,
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However, it has only to a limited degree been recognized as a violation of hu- man rights law and as yet there is no specific definition or a coherent legal ap- proach.4 Forced nudity appears, from case law, to regard nudity to be enforced during a period of time by a person in authority, without the requisite purpose of a public function.5 It often takes place during interrogation, detention or armed conflict in various settings, instilling fear, vulnerability and loss of digni- ty in the individual.6 A public element is often present in the case law from the ad hoc tribunals, the nudity occurring in front of strangers, family members or militia.7 Strip-searches and forced nudity may thus both include nudity or- dered by an individual in a position of authority. The main difference appears to be the official purpose of the act—for example, a search for contraband as opposed to the deliberate instilling of humiliation. The main question is thus to what degree and under what circumstances these forms of imposed nudity are considered to be violations of the regional human rights conventions. In addressing the issue from a women’s perspec- tive, additional questions arise in order to evince whether it constitutes gender-based violence: what harm do forced nudity/strip-searches represent and in what contexts are they considered to be forms of sexual violence? Forced nudity and, to a limited degree, strip-searches can, for example, be considered to have a gender component in that women are considered to be placed in a particularly vulnerable position with regard to further sexual abuse and thus experience a heightened level of harm as opposed to men. And if one
‘The Jurisprudence of International War Crimes Tribunals: Securing Gender Justice for Some Survivors’, in Helen Durham and Tracey Gurd (eds) Listening to the Silences: Women and War (Martinus Nijhoff Publishers 2005), 146. 4 The un Special Rapporteur on Torture, however, considers ‘being stripped naked, inva- sive body searches’ a form of sexual violence: Report of the Special Rapporteur on Torture and Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak, un Doc. A/ HRC/7/3 (15 January 2008), para. 34. 5 Prosecutor v Jean Paul Akayesu (ictr) (n 3), para. 697; Prosecutor v Brdanin, icty, Case No. IT-99-36-T (n 3); Abramova v Belarus, cedaw, Communication No. 23/2009, un Doc. CEDAW/C/49/D/2009 (27 September 2011); Case of Miguel Castro-Castro Prison v Peru (Mer- its, reparations and costs), IACtHR, Ser. C No. 160 (25 November 2006). 6 Sandesh Sivakumaran, ‘Sexual Violence Against Men in Armed Conflict’ (2007) 18:2 Eur J Int Law 253, 269. 7 It does not necessitate physical contact. See ‘Women, Peace and Security’, Study submitted by the Secretary-General pursuant to Security Council Resolution 1325 (2000), para. 59; Re- port of the Special Rapporteur on violence against women, its causes and consequences, Ms Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights reso- lution 2000/45, Violence against Women Perpetrated and/or Condoned by the State During Times of Armed Conflict (1997–2000), un Doc. E/CN.4/2001/73 (23 January 2007), para. 44.