A/HRC/13/39/Add.5
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
163
164
165
166
167
168
58
Nowak and McArthur, 44 et seq.
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.
A/HRC/4/33/Add.1, para. 270.
A/HRC/10/44/Add.4, para. 187.
E/CN.4/2006/6/Add.1, para. 398.
A/HRC/4/33/Add.1, para. 106.
A/HRC/4/33/Add.1, para. 318.
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