1.3.2 Lawful sanctions
The exception for “lawful sanctions” is explicit in UNCAT, where the definition of torture specifically excludes “pain or suffering arising only from, inherent in or incidental to lawful sanctions.”126 Unlike the earlier Declaration on the
Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted by the General
Assembly in 1975, the 1984 UNCAT did not elaborate the concept of lawful
sanctions. The text in the Declaration, on which the UNCAT language was
based, specifically referred to “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,” which prohibit, among other things,
corporal punishment of detainees.127 The change in language may well have
been based solely on technical considerations, as during negotiations for the
Convention text States were reluctant to refer to a non-treaty text, such as the
Standard Minimum Rules, in a binding treaty.128
1
UN TREATY BODIES
While Article 7 ICCPR does not describe any exceptions to the prohibition on
torture and ill-treatment, the HRC has made it clear that some types of lawful
sanctions are permissible.124 The lawfulness of any sanction will be determined
by reference to national and international law, with international law taking
precedence in cases of conflict; as the HRC noted in Osbourne v Jamaica, “The
permissibility of the sentence under domestic law cannot be invoked as justification under the Covenant.”125
While the issue is not yet definitively resolved, it has become clear over time
that the CAT will determine the lawfulness of a sanction with reference to
both national and international law and standards, including the Standard
Minimum Rules for the Treatment of Prisoners.129 This is a logical approach
given the absolute nature of the prohibition of torture and the need for consistency of application. It also reflects the general principle of international
law, expressed in the Vienna Convention on the Law of Treaties, that a State
See, for example, Vuolanne v Finland (1989), op. cit.
Osbourne v Jamaica, HRC Communication No. 759/1997, 15 March 2000, §9.1.
Article 1 UNCAT.
127
Article 1, Declaration on the Protection of All Persons from Being Subjected to Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.
128
See Burgers and Danelius, op. cit., at p. 121.
129
See, for example: Concluding Observations on the Democratic Republic of the Congo, UN
Doc. A/61/44, 2006, §26(11); Concluding Observations on Togo, UN Doc. A/61/44, 2006,
§36(19),
124
125
126
31
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