Article 1. Definition of Torture
65
that his Government considered as lawful sanctions only such punishments as were permitted under national and international law, which clearly excluded a punishment such
as the severing of limbs, Committee members remained silent.250 When the Dutch delegation in 1990 asked the question whether corporal punishment in general fell under
lawful sanctions, the Committee did not use this opportunity to address this delicate
issue.251 It was only during the consideration of the Namibian report in 1997 that the
Committee for the first time in clear terms recommended the ‘prompt abolition of corporal punishment insofar as it is legally possible under the Prisons Act of 1959 and the
Criminal Procedure Act of 1977’.252
139 Most revealing and controversial was the fairly long and somewhat polemical
debate on the question whether corporal punishment was covered by the lawful sanctions clause during the examination of the report of Saudi Arabia in 2002.253 In response
to a respective Committee question, the representative of Saudi Arabia explained that
corporal punishment was administered under full medical, judicial, and administrative
supervision, full account being taken of the health status of the person concerned. The
Quran set out specific sanctions such as amputation, flogging (whipping), and stoning
for certain crimes. These sanctions emanated from God, were the law of the land and,
therefore, permitted by the lawful sanctions clause in Article 1 CAT. In its Concluding
Observations, the Committee expressed deep concern and recommended that the State
party re-examine its imposition of corporal punishment (including in particular flogging
and amputation of limbs), ‘which are in breach of the Convention’.254 A similar recommendation was expressed more recently, when the Committee recommended Saudi
Arabia to stop immediately the practices of flogging/lashing, amputation of limbs, and
any other form of corporal punishment and prohibit their use by law, as they amount to
torture and ill-treatment and constitute a violation of the Convention.255
140 When considering the report of Yemen in 2003, the Committee attempted to
distinguish between Articles 1 and 16 in relation to corporal punishment:256 On the
matter of flogging, the Committee had been apprised that the purpose of the punishment
was not so much to inflict pain as to humiliate the victim. The Committee noted, that
if the purpose was to inflict pain, the punishment would seem to violate Article 1, and
if the object was simply to humiliate the victim, it appeared to constitute a violation of
Article 16.
141 The Committee also expressed concern regarding certain provisions of the
Criminal Code of Qatar allowing punishments such as flogging and stoning to be imposed as criminal sanctions by judicial and administrative authorities and, whilst not
referring to a specific article, concluded that these practices constituted a breach of the
obligations imposed by the Convention. It asked the State party to review the relevant
legal provisions of the Criminal Code with a view to abolishing them immediately.257
250
CAT, ‘Consideration of Reports submitted by States Parties under Article 19 of the Convention,
Addendum Switzerland’ (1989) UN Doc CAT/C/5/Add.17 and CAT/C/SR.28, para 11.
251
252
CAT/C/SR.47, paras 81ff.
A/52/44 (n 140) para 250.
253
CAT/C/SR.519 and 525. See also Faria Coracini and Eduardo Celso, ‘The Lawful Sanctions Clause in
the State Reporting Procedure before the Committee against Torture’ (2006) 24 NQHR 305.
254
CAT, ‘Concluding Observations: Saudi Arabia’ (2002) UN Doc CAT/C/CR/28/5, paras 4(a), (b),
and 8(b).
255
CAT, ‘Concluding Observations: Saudi Arabia’ (2016) UN Doc CAT/C/SAU/CO/2, para 11.
256
CAT/C/SR.583, para 10.
257
CAT, ‘Concluding Observations: Qatar’ (2006) UN Doc CAT/C/QAT/CO/1, para 12.
Zach
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