Table of contents:
P.20. Evidence of sanctions imposed on the basis of national law.
P.21. Evidence of sanctions being consistent with international law and standards.
7.2. Pain or suffering did not arise only from and was not inherent in lawful sanctions; or
P.22. Evidence of pain or suffering not inherent in lawful sanctions; and
7.3. Pain or suffering did not arise only from and was not incidental to lawful sanctions.
P.24. Evidence of pain or suffering not incidental to lawful sanctions; and
Element:
P.20. Evidence of sanctions imposed on the basis of national law.
P.21. Evidence of sanctions being consistent with international law and standards.
A. Legal source/authority and evidence:
1988 Report of the UN Special Rapporteur on Torture, U.N. Doc. E/CN.4/1988/17, para. 42:
"42. The penal codes of some countries recognize corporal punishment, e.g. flogging or amputations, as a sanction against violators of the law. First of all, it must be said that the fact that these sanctions are accepted under domestic law does not necessarily make them "lawful sanctions" in the sense of article 1 of the Convention against Torture. […] It is international law and not domestic law which ultimately determines whether a certain practice may be regarded as "lawful".
1997 Report of the UN Special Rapporteur on Torture, U.N. Doc. E/CN.4/1991997/7, paras. 7-8:
"7. The Special Rapporteur is aware of the view held by a small number of Governments and legal experts that corporal punishment should not be considered to constitute torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the obligation of States under international law to refrain from such conduct. Some proponents of the proposition that corporal punishment is not necessarily a form of torture argue that support for their position may be found in article 1 of the Convention against Torture, wherein torture is defined for the purposes of the Convention. That definition excludes from the ambit of proscribed acts those resulting in "pain or suffering arising only from, inherent in or incidental to lawful sanctions". Thus, the argument proceeds, if corporal punishment is duly prescribed under its national law, a State carrying out such punishment cannot be considered to be in breach of its international obligations to desist from torture.
8. The Special Rapporteur does not share this interpretation. In his view, the "lawful sanctions" exclusion must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community, such as deprivation of liberty through imprisonment, which is common to almost all penal systems. Deprivation of liberty, however unpleasant, as long as it comports with basic internationally accepted standards, such as those set forth in the United Nations Standard Minimum Rules for the Treatment of Prisoners, is no doubt a lawful sanction. By contrast, the Special Rapporteur cannot accept the notion that the administration of such punishments as stoning to death, flogging and amputation - acts which would be unquestionably unlawful in, say, the context of custodial interrogation - can be deemed lawful simply because the punishment has been authorized in a procedurally legitimate manner, i.e. through the sanction of legislation, administrative rules or judicial order. To accept this view would be to accept that any physical punishment, no matter how torturous and cruel, can be considered lawful, as long as the punishment had been duly promulgated under the domestic law of a State. Punishment is, after all, one of the prohibited purposes of torture. Moreover, regardless of which "lawful sanctions" might be excluded from the definition of torture, the prohibition of cruel, inhuman or degrading punishment remains. The Special Rapporteur would be unable to identify what that prohibition refers to if not the forms of corporal punishment referred to here. Indeed, cruel, inhuman or degrading punishments are, then, by definition unlawful; so they can hardly qualify as "lawful sanctions" within the meaning of article 1 of the Convention against Torture."
Machteld Boot, "Article 7: Crimes against humanity" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), p. 106:
"The concept of lawful means international law or national law which is consistent with international law and standards. […] [T]he fact that a State authorizes certain treatment or punishment des not exclude criminal responsibility for torture under article 7."
Byrnes, A., "Torture and Other Offences Involving the Violation of the Physical or Mental Integrity of the Human Person", in G. K. McDonald and O. Swaak-Goldman (eds.), Substantive and Procedural Aspects of International Criminal Law, Volume 1 Commentary, p. 218:
"The main area of legal contention in relation to this exception is whether the term "lawful" refers only to domestic law or whether it also bears an autonomous meaning and refers as well to international law notion of "lawfulness". The drafters of the UN Torture Convention "[did] not resolve the controversy in an unequivocal manner", 98 but it appears that the better view is that the lawfulness of measures must be measured under both national law and international law. 99 The UN Committee against Torture has maintained a similar view, both in relation to corporal punishment and to other forms of conduct authorised under national law that rise to the level of torture and other ill-treatment. 100"
"98. Burgers and Danelius, supra note 17, at 121-22.
99. See, e.g., the discussion of this issue in relation to corporal punishment and the guarantee against cruel, inhuman and degrading treatment or punishment by the UN Special Rapporteur on Torture in his 1997 report: Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights Resolution 1995/37 B, U.N. Doc. E/CN.4/1997/7, paras. 3-11 (1997). He maintains that "the ‘lawful sanctions’ exclusion must necessarily refer to those sanctions that constitute practices widely accepted as legitimate by the international community." Id. Para. 8.
100. See, e.g., the concluding comments of the UN Committee against Torture in relation to the second periodic report of China under the UN Torture Convention. In relation to methods of execution of death sentences (lawful under Chinese national law), the Committee commented that "some methods of capital punishment may be in breach of article 16 [cruel, inhuman or degrading treatment or punishment]" and recommended that "the methods of execution … should be brought into conformity with article 16." U.N. Doc. A/51/44, paras. 149(d) and 150(c) (1996)."
CAT, Concluding Observations, Saudi Arabia, UN Doc. CAT/C/CR/28/5 (2002), para. 4 (b):
"The sentencing to, and imposition of, corporal punishments by judicial and administrative authorities, including, in particular, flogging and amputation of limbs, that are not in conformity with the Convention."
7.2.Pain or suffering did not arise only from and was not inherent in lawful sanctions; or
P.22. Evidence of pain or suffering not inherent in lawful sanctions; and
P.23. Evidence of the involvement of other factors than lawful sanctions in causing pain or suffering.
7.3.Pain or suffering did not arise only from and was not incidental to lawful sanctions.
P.24. Evidence of pain or suffering not incidental to lawful sanctions; and
P.25. Evidence of the involvement of other factors than lawful sanctions in causing pain or suffering.
