DEL DEPARTAMENTO DE ROCHA
NORMAS GENERALES CON REFERENCIA AL ORDENAMIENTO TERRITORIAL
212. On occasion, some States have argued that any sanction imposed in accordance with domestic law, including the most severe forms of corporal punishment, was covered by the wording of the second sentence in article 1(1) CAT, the so-called lawful sanctions clause. 213. In this respect I want to draw the attention to the discussions that took place during the drafting of the UN Convention against Torture.159 Article 1 of the UN Declaration
against Torture of 9 December 1975160 and article 1 of the draft submitted by Sweden on 18
January 1978161 served as basis for the debate on the definition of torture in the Working
Groups. Both provisions included a clause on so-called lawful sanctions, which were exempted from the definition of torture, stating that “It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners”. Thus, the application of any sanctions that should not fall under the definition of torture was linked to consistency, in particular with the Standard Minimum Rules, and in particular article 31 of these rules (“Corporal punishment, punishment by placing in a dark cell, and all cruel, inhuman or degrading punishments shall be completely prohibited as punishments for disciplinary offences”).
214. The lawful sanctions clause and the reference to an internationally non-binding instrument (the Standard Minimum Rules) was the subject of intense discussions during the Working Group’s 34th and 35th session. The reference to the Standard Minimum Rules was
eventually deleted from article 1 CAT only on the ground that certain Governments did not wish to include a reference to a non-binding soft law instrument in a binding treaty. When
155 A/57/173, para. 47.
156 A v. The United Kingdom, European Court of Human Rights, Reports 1998-VI, judgment of 23
September 1998, para. 21.
157 A/61/299. 158 CRC/C/GC/8.
159 See Nowak and McArthur, Article 1. See also Burgers/Danelius, 121.For an overview of the relevant
jurisprudence of international and regional human rights mechanisms on corporal punishment see A/60/316, paras. 19–25, and Association for the Prevention of Torture (APT)/Center for Justice and International Law (CEJIL), Torture in International Law. A guide to jurisprudence, 2008.
160 GA Res. 3452 (XXX). 161 E/CN.4/1285.
these Governments realized that the deletion of the reference to the Standard Minimum Rules would in fact open the door to an exemption of serious types of corporal punishment from the prohibition of torture, they tried to replace it by another limitation referring to binding international standards. The United States, for instance, proposed that lawful sanctions “imposed in flagrant disregard of accepted international standards” would not be permitted. As the drafters could not reach agreement on defining these “accepted international standards”, many Governments unsuccessfully tried to delete the lawful sanctions clause altogether. Others insisted in their written comments that the term “lawful sanctions” must be interpreted to refer both to domestic and international law. The Working Group deliberately did not include a similar clause in article 16 CAT, which prohibits other forms of cruel, inhuman or degrading treatment or punishment.162
215. The extreme interpretation advocated by some Islamic States who maintained that any sanction imposed in accordance with domestic law, including corporal punishment, was covered by the lawful sanctions clause is in clear contradiction with general international human rights (and humanitarian) law as expressed, for instance, in the case law of the Human Rights Committee in relation to article 7 CCPR, which considers any form of corporal punishment as a violation of international law.163 Such interpretation would
suggest that the CAT, which was adopted in 1984 with the clear object and purpose of strengthening the already existing State obligations to prevent and punish torture, in fact had lowered this international standard. Accordingly, such an interpretation is clearly incompatible with the object and purpose of the Convention and can, therefore, not be upheld in light of article 31 of the Vienna Convention on the Law of Treaties (VCLT). In addition, the savings clause in article 1(2) CAT prevents such an interpretation.
216. Since assuming my mandate, I have sent several communications relating to corporal punishment to a certain number of countries. In fact, a review of these communications reveals that only a very limited number of countries seem to sustain this cruel and inhuman form of judicial sanctions. Another fact that can be observed from assessing my communications is, on the one hand, the incredible cruelty of some of the reported punishments, such as amputations of the right hand and the left food164 or flogging
with 5000 lashes.165 On the other, many of the offences sanctioned with corporal
punishment involved acts related to sexuality, such as “un-Islamic sexual activities”,166
“illicit relations”,167 or adultery.168
217. Adultery is also the offence most often quoted in cases where individuals are sentenced to death by stoning. In an urgent appeal sent to Somalia in 2008, it was alleged that a woman who had attempted to report that she had been raped was accused and convicted of adultery. She was reportedly sentenced to death by stoning; her hands and feet
162 Nowak and McArthur, 44 et seq.
163 The Human Rights Committee has already in its General Comment 7/16 of 27 July 1982, para 2,
expressed the unanimous opinion that the prohibition of article 7 CCPR “must extend to corporal punishment, including excessive chastisement as an educational or disciplinary measure”. Since the landmark decision of Osbourne v. Jamaica of March 2000 (No. 759/1997, para. 9.1), in which the Committee unanimously confirmed its “firm opinion” that “corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the Covenant”, this interpretation has developed into constant jurisprudence. Higginson v. Jamaica, No. 792/1998;
Sooklal v. Trinidad and Tobago, No. 928/2000; Errol Pryce v. Jamaica, No. 793/1998; and cf.
Nowak, CCPR-Commentary, 167 et seq.
164 A/HRC/4/33/Add.1, para. 270. 165 A/HRC/10/44/Add.4, para. 187. 166 E/CN.4/2006/6/Add.1, para. 398. 167 A/HRC/4/33/Add.1, para. 106. 168 A/HRC/4/33/Add.1, para. 318.
were tied and she was buried in the ground up to the neck. Approximately fifty men stoned her to death while thousands of people watched. She was unburied three times in order to confirm whether she was dead.169 The Penal Code of Iran provides the following: A woman
sentenced to stoning is to be buried in the ground up to a line above her breasts (article 102 Penal Code) before being stoned with stones that should not be large enough to kill the person by one or two strikes, nor so small that they could not be defined as stones (article 104 Penal Code).
218. During my mission to Indonesia, I expressed my sincere concern about penalties provided for by Sharia law, such as public flogging, incorporated into the 2005 Aceh Criminal Code. These local regulations criminalize the consumption of alcohol, close proximity between unwed couples, and gambling, and penalize them by flogging. Such offences of morality are normally tried in public hearings, at which the audience can shout at the defendant, rendering the presumption of innocence meaningless. Moreover, punishments are carried out in public and are often televised. I found that the Aceh Criminal Code entailed particularly discriminatory sanctions for women: Besides public flogging, punishments include cutting women’s dresses in public and the forced shaving of their heads, which constitute inhuman and degrading treatment. Moreover, the fact that these punishments are carried out in public generates stigmatization and social sanctioning lasting well beyond the execution of the punishment, as women sentenced to such public punishments are labelled as immoral by their husbands, families and communities. This social exclusion can equally amount to inhuman and degrading treatment.
219. In general, as I stated in my report to the Human Rights Council in 2008, women are disproportionally found guilty of adultery and other related offences and subjected to corporal punishment including stoning to death, which is inconsistent with the prohibition of discrimination on the basis of sex enshrined in all major human rights instruments, including the Convention on Elimination of All Forms of Discrimination against Women (CEDAW).170