In Article 1 of international convention on torture. It states the following
It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions
How is this interpreted and is this interpreted broadly ? To include torture , cruel and inhuman treatment itself as a legal punishment ?
Many countries around the world still execute people. As far as is known, no form of capital punishment is totally painless - even lethal injection involves a needle. In any event, the anticipation of capital punishment is likely to cause suffering.
Similarly, corporal punishment such as caning is still a lawful sanction in many jurisdictions. This clearly causes pain - that’s the point - but it isn’t torture.
It would also exclude lawful corporal punishment of students by teachers where this is still legal. Or of military personnel by their superiors, again, where that is legal.
Now, organisations like Amnesty International consider all of those things to be torture. I don’t think they are wrong in taking that position but, under the convention, they aren’t legally torture.
There are several views as to the meaning of the "lawful sanctions" exception.
Special Rapporteur on torture, Nigel S. Rodley, was tasked by the U.N. Commission on Human Rights to report on the practice of corporal punishment through the lens of various human rights instruments, including the UNCAT. He reported (E/CN.4/1997/7):
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... 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, floggin and amputation -- acts which would unquestionably be 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.
See Concluding Observations on South Africa, UN Doc. CAT/C/ZAF/CO/1, 2006, §25:
The State party should ensure that legislation banning corporal punishment is strictly implemented, in particular in schools and other welfare institutions for children, and establish a monitoring mechanism for such facilities.
Article 16 forbids "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture" anyway, with no exception for "lawful sanctions." Article 1's "lawful sanctions" exception, when read in conjunction with Article 16, may be meaningless. See C.E.F. Coracini, "The Lawful Sanctions Clause in the State Reporting Procedure Before the Committee Against Torture" (2006) 24 Netherlands Quarterly of Human Rights 305, p. 317:
If the sole arguable application of the 'lawful sanctions' clause is to prevent the treatment of prisoners, consistent with international standards, from falling within the threshold of the concept of torture, and considering that the treatment of prisoners in accordance with international law should not violate the prohibition of torture, the clause is potentially a useless provision, which at the present time, ought not to be taken into account by interpreters.
Organisation Mondiale Contre la Torture (OMCT) says in their handbook:
the issue is not resolved, and it may be that this exception exempts even the cruellest treatment from classification as "torture" if such treatment is authorised by domestic law. [citing Johan D. van der Vyver, "Torture as a Crime Under International Law" (2003) 67 Albany Law Review 427, p. 432]
The United States, in the context of its extradition regulations made to comply with the UNCAT, understands "lawful sanctions" to include (see 22 C.F.R. § 95.1):
judicially imposed sanctions and other enforcement actions authorized by law, provided that such sanctions or actions were not adopted in order to defeat the object and purpose of the Convention to prohibit torture
Disagreeing with the above answer.The "clause" is to be read with reference to both international and domestic law with international law taking precedence. It is impossible for states to in and of itself justify corporal punishment with reference to domestic legislation allowing it.
