66
United Nations Convention Against Torture and its Optional Protocol
The Committee also welcomed the enactment of legislation banning flogging as a disciplinary penalty for prisoners.258 In all of these cases the Committee has thus made it very
clear that it understands that these punishments violate the Convention and cannot be
subsumed under the lawful sanctions clause.
142 The United Arab Emirates, when accessing the Convention in 2012, also issued a
‘declaration’, confirming that ‘the lawful sanctions applicable under national law, or pain or
suffering arising from or associated with or incidental to these lawful sanctions, do not fall
under the concept of “torture” defined in article 1 of this Convention or under the concept
of cruel, inhuman or degrading treatment’.259 This ‘declaration’, which in fact is a reservation,
was strongly objected by a number of European States, underlining that it is incompatible
with the object and the purpose of the Convention.
143 Regarding the death penalty and methods of execution, with reference to Articles
1, 2, and 16, in 2006, the Committee expressed concern at substantiated information
indicating that executions in the United States ‘can be accompanied by severe pain and
suffering’260 and recommended that the State party carefully review its execution methods,
in particular, in order to prevent severe pain and suffering.261 One can conclude from
this reference that the Committee understands that capital punishment might very well
amount to torture. The Committee in the meantime also regularly recommends States
parties to accede to the Second Optional Protocol to the ICCPR, aiming at the abolition
of the death penalty.262
144 More recently, the Committee also expressed its concern that Hong Kong, China
in its legislation still includes ‘lawful authority, justification or excuse’ of illicit conduct.263
The Committee not only reiterated that the prohibition of torture is absolute and non-
derogable and that it does not permit any possible defence, but it also considered that the
defence of ‘lawful authority, justification or excuse’ is broader in scope than the lawful
sanction clause in Article 1. The Committee thus concludes that this regulation could
lead to interpretations that are not in line with the Convention.
145 Regarding the Kazakh report, the Committee criticized that the definition in the
Criminal Code excludes ‘physical and mental suffering caused as a result of “legitimate
acts” ’.264 It subsequently asked that the State party should ensure ‘that only pain or suffering arising from, inherent in or incidental to lawful sanctions are excluded from the
definition, and should remove the reference to “legitimate acts” in that context’.265 It did
not specify in any way about its understanding regarding the scope of the lawful sanctions
clause.
146 It is difficult to find any meaningful scope of application for the lawful sanctions
clause. One extreme interpretation is the one advocated by Saudi Arabia and other Islamic
States maintaining that any sanction imposed in accordance with domestic law, including
the most severe forms of corporal punishment and executions of capital punishment, was
CAT, ‘Concluding Observations: Egypt’ (2002) UN Doc CAT/C/CR/29/4, para 3(a).
See declaration by United Arab Emirates in Appendix A.4.
260
261
CAT/C/USA/CO/2 (n 141) para 31.
ibid.
262
CAT, ‘Concluding Observations: Burkina Faso’ (2014) UN Doc CAT/
C/
BFA/
CO/
1, para 24;
CAT/C/CHN/CO/5 (n 148) para 50; Ethiopia, CAT/C/ETH/CO/1 (n 215) para 24; CAT, ‘Concluding
Observations: Guinea’ (2014) UN Doc CAT/C/GIN/CO/1, para 25; CAT, ‘Concluding Observations: Kuwait’
(2011) UN Doc CAT/KWT/CO/2, para 17; CAT/C/USA/CO/3-5 (n 86) para 25. See also below Art 16.
263
CAT, ‘Concluding Observations: Hong Kong’ (2016) UN Doc CAT/C/CHN-HKG/CO/5, para 10.
264
265
CAT/C/KAZ/CO/3 (n 224) para 24.
ibid.
258
259
Zach
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