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INTERSECTION OF FREEDOM OF RELIGION OR BELIEF WITH OTHER HUMAN RIGHTS

3. Prohibition on torture and other cruel, inhuman or degrading treatment or punishment

ICCPR

Art. 7: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Convention against Torture

Art. 1: " For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as [...] punishing him for an act he or a third person has committed or is suspected of having committed, [...] or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

Art. 16: " Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."

CEDAW

Art. 5 (a): States Parties shall take all appropriate measures, "To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of inferiority or the superiority of either of the sexes or on stereotyped roles for men and women."

Commission on Human Rights resolution 2005/40

4.f: The Commission on Human Rights urges States, "To ensure that no one within their jurisdiction is deprived of the right to life, liberty, or security of person because of religion or belief and that no one is subjected to torture or arbitrary arrest or detention on that account, and to bring to justice all perpetrators of violations of these rights;".

Commission on Human Rights resolution 2005/39

7: The Commission on Human Rights, "Reminds Governments that corporal punishment, including of children, can amount to cruel, inhuman or degrading punishment or even to torture;".

Commission on Human Rights resolution 2003/32

5: The Commission on Human Rights, "Reminds Governments that corporal punishment, including of children, can amount to cruel, inhuman or degrading punishment or even to torture;".

General Assembly Declaration 48/104

Art. 4 (c): States should, "Exercise due diligence to prevent, investigate and, in accordance with national legislation, punish acts of violence against women, whether those acts are perpetrated by the State or by private persons."

Human Rights Committee general comment 20

Para. 5: "In the Committee's view, moreover, the prohibition [of torture] must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure."

[Go back to the Framework for communications]

Excerpts of relevant paragraphs of 25 years mandate reporting practice (1986-2011)

E/CN.4/2002/73/Add.2, paras. 168 and 228:

168. Marital rape is still to some extent linked to patriarchal patterns and to a reactionary view of the image of women within the marital relationship. From that perspective, the deep-seated origins of such perception are, irrespective of a society’s stage of development, rooted in ancient religious practices fostered by a culture that relegates women to a subservient position. Some States do not recognize marital rape and treat women’s complaints against their husbands as void.[This applies to India, Malaysia, Papua New Guinea and Serbia. See the website www.penelopes.org/pages/beijing/textes/tradit9.htm. It is also true of Mongolia, Report of the Human Rights Committee (A/55/40, vol. I, para. 323).] Marital rape is a form of domestic violence or torture against women and should thus be dealt with accordingly.  [...]

228. As rightly noted by the Office of the United Nations High Commissioner for Refugees (UNHCR) in a memorandum for its field staff, while cultural or religious traditions of refugee communities must be respected, victims of female genital mutilation in particular suffer a form of torture. UNHCR encourages States to consider that persecution faced by women because of perceived transgressions of social mores should be recognized as a ground for refugee status, which some States already do. [See UNHCR/IOM/83/97. See also the examples of Denmark, Canada, Sweden and the United States of America, which have taken measures to that effect (A/53/354, paras. 37, 38, 41 and 45).]  This applies also to women who fear for their lives in cases of honour crimes or forced marriage. Such women should be entitled to the right of asylum and to the protection of other States. "

E/CN.4/2006/5/Add.2, paras. 67-68 and 100 (country visit to Nigeria):

"Torture and other cruel, inhuman or degrading treatment or punishment

67. Probably the most often addressed question is the compatibility of certain forms of punishment prescribed by sharia penal codes with international human rights law, in particular those provisions that prohibit torture or cruel, inhuman and degrading treatment or punishment.

68. In this regard, in addition to the Human Rights Committee which stated in its general comment No. 20 that the prohibition of torture and cruel, inhuman or degrading treatment or punishment contained in article 7 of the International Covenant on Civil and Political Rights extends to corporal punishment, other United Nations human rights mechanisms have, on numerous occasions, declared the incompatibility of such forms of punishment with human rights provisions prohibiting torture and other forms of ill treatment. [See for instance, the report of the Special Rapporteur on torture submitted to the Commission on Human Rights at its fifty-third session (E/CN.4/1997/7, para. 6); concluding observations of the Committee against Torture on the initial periodic report of Saudi Arabia, 12 June 2002 (CAT/C/CR/28/5, para. 4 (b)); report of the Special Rapporteur on violence against women, its causes and consequences, submitted to the Commission on Human Rights at its fifty-ninth session (E/CN.4/2003/75, para. 68) and (E/CN.4/2003/75/Add.1, para. 460).] The Special Rapporteur is of the opinion that punishments such as stoning or amputation constitute, if not torture, at least cruel, inhuman and degrading treatment [The Special Rapporteur emphasizes in this regard that she does not wish to make a distinction between torture and other forms of ill treatment, including because such a consideration is outside the scope of her mandate. She would limit herself to consider these acts as contrary to article 7 of the ICCPR.] that is prohibited in absolute terms by various international conventions to which Nigeria is a party and which allow for no exception whatsoever. [...]

100. The Special Rapporteur considers that the legal systems such as have been adopted by a number of states in Nigeria contain provisions that raise concern in terms of human rights. Certain forms of punishment contained in the sharia penal codes, such as amputation or stoning, constitute treatment that is contrary to universally recognized norms prohibiting torture and other degrading, cruel and inhuman treatment or punishment, including international conventions to which Nigeria is a party. Moreover, it was underlined above that certain provisions as well as the practice of some sharia courts appeared to be in contravention of the principle of nulla poena sine lege and of equality before the law. Finally, the possibility, at least in theory, that Muslims could be convicted and sentenced to death because they converted to another religion would constitute a clear violation of the right to freedom of religion or belief."

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