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Other human rights Treaty Bodies and corporal punishment
Human Rights Committee
The Human Rights Committee monitors implementation of the International Covenant on Civil and Political Rights.
As in the International Covenant on Economic, Social and Cultural Rights, the Preamble states that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world..."
Extracts:
Article 7: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment..."
Article 10: "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person…"
Article 24(1): "Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State."
Article 26: "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status".
General comment
In its General Comment No. 20, adopted in 1992, on article 7 of the Covenant ("No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…") the Committee states:
"The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim. In the Committee’s view, moreover, the prohibition must extend to corporal punishment, including excessive chastisement ordered as a punishment for a crime or as an educative or disciplinary measure. It is appropriate to emphasise in this regard that article 7 protects, in particular, children, pupils and patients in teaching and medical institutions."
(HRI/GEN/1/Rev.4, page 108; this General Comment replaced the Committee’s 1982 General Comment No. 7 on article 7)
The Human Rights Committee has expressed concern at use of corporal punishment in schools and penal systems for young offenders and recommended prohibition.
For example, it told Kyrgyzstan in its Concluding Observations on the initial report in 2000 that "corporal punishment must be prohibited" (CCPR/CO/69/KGZ, 24 July 2000, para. 19)
In its Concluding Observations on the fourth and fifth periodic reports concerning UK Crown Dependencies it stated: "The Committee notes the information provided by the delegation that corporal punishment is not permitted in schools on the Isle of Man as a matter of policy, and recommends the adoption of legislation to outlaw corporal punishment (arts. 7 and 10)." (CCPR/C/79/Add.119, 27 March 2000, para. 11)
Concluding Observations:
Concluding Observations on Guyana’s second periodic report:
"The Committee is concerned that corporal punishment is still resorted to in the State party and regrets the lack of specific information on this issue… The State party should take legal and other measures to eliminate this practice (art. 7)."
(CCPR/C/79/Add.121, 25 April 2000, para.12)
Concluding Observations on third periodic report of the United Republic of Tanzania:
"The Committee notes with approval the Nyalali Commission's recommendation to abolish corporal punishment as a judicial sentence; such penalty should also be precluded for offences against prison regulations and children should no longer be subjected to corporal punishment in schools (art. 7)."
(CCPR/C/79/Add.97, 18 August 1998, para. 16)
Concluding Observations on Yemen’s second periodic report:
"…. The Committee recommends that the Government take the initiative for the total abolishment of corporal punishment."
(CCPR/C/79/Add.51, 3 October 1995, para. 262)
Individual communications to Human Rights Committee
If States ratify Optional Protocol No. 1 to the International Covenant on Civil and Political Rights, individuals within their jurisdiction are able to send individual communications to the Human Rights Committee, complaining about breaches of their rights under the Covenant (for details of procedure see http://www.unhchr.ch/html/menu2/8/over.htm).
Communications must not be anonymous and cannot be considered unless they come from a person or persons subject to the jurisdiction of a State that is a party to the Optional Protocol.
Normally, a communication should be sent in by the individual who claims that his or her rights have been violated by the State. When it appears that the alleged victim is unable to submit the communication, the Committee may consider a communication from another person who must prove that he or she is acting on behalf of the alleged victim. A third party with no apparent links with the person whose rights have allegedly been violated cannot submit a communication.
The complaint cannot be considered if the same problem is being investigated under another international procedure, and all domestic remedies must have been exhausted before it can be taken up by the Committee.
It appears there have not as yet been any individual communications from children and young people concerning corporal punishment. But the Human Rights Committee's position is very clear, as can be seen from its conclusions on three cases involving sentences of corporal punishment of adults:
Considering a complaint from an adult in Jamaica who had been sentenced to be whipped for a violent crime, the Human Rights Committee concluded in 2000:
"Irrespective of the nature of the crime that is to be punished, however brutal it may be, it is the firm opinion of the Committee that corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the Covenant. The Committee finds that by imposing a sentence of whipping with the tamarind switch, the State party has violated the author's rights under article 7."
The Committee added:
"The State party is also under an obligation to refrain from carrying out the sentence of whipping upon Mr. Osbourne. The State party should ensure that similar violations do not occur in the future by repealing the legislative provisions that allow for corporal punishment."
(CCPR/C/68/D/759/1997; views adopted March 15 2000;
Click here for further details)
In 2001, the Committee considered an application concerning penal corporal punishment in Trinidad and Tobago and concluded:
"The Committee notes that the author was sentenced to 12 strokes of the birch and recalls its decision in Osbourne v. Jamaica in which it decided that irrespective of the nature of the crime that is to be punished, however brutal it may be, it is the firm opinion of the Committee that corporal punishment constitutes cruel, inhuman or degrading treatment or punishment contrary to article 7 of the Covenant. In the present case, the Committee finds that by imposing a sentence of whipping with the birch, the State party has violated the author's rights under article 7.
(CCPR/C/73/D/928/2000; views adopted October 25 2001)
In 2002 it issued conclusions on another individual application concerning a sentence of whipping in Jamaica. The Committee concluded that this was contrary to article 7 of the Covenant and stated:
"... the State party is under an obligation to provide the author with an effective remedy, including refraining from carrying out the sentence of whipping upon the author or providing appropriate compensation if the sentence has been carried out. The State party should ensure that similar violations do not occur in the future by repealing the legislative provisions that allow for corporal punishment."
(CCPR/C/74/D/792/1998; views adopted March 28 2002;
Click here for further details).
For more information on this Committee, visit their website: www.unhchr.ch/html/menu2/6/hrc.htm
Committee on Economic, Social and Cultural Rights
The Committee on Economic, Social and Cultural Rights oversees implementation of the International Covenant on Economic, Social and Cultural Rights.
As in the International Covenant on Civil and Political Rights, the Preamble states that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world..."
In May 2002, the Committee called on the UK to ban all physical punishment of children in families. Click here for our report.
Extracts:
Article 10(3): "Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions..."
Article 13(1): "The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms..."
General Comment condemns corporal punishment
In 1999 the Committee on Economic, Social and Cultural Rights adopted a General Comment on "The Right to Education". The Committee states:
"In the Committee’s view, corporal punishment is inconsistent with the fundamental guiding principle of international human rights law enshrined in the Preambles to the Universal Declaration of Human Rights and both Covenants: the dignity of the individual. Other aspects of school discipline may also be inconsistent with human dignity, such as public humiliation. Nor should any form of discipline breach other rights under the Covenant, such as the right to food. A State Party is required to take measures to ensure that discipline which is inconsistent with the Covenant does not occur in any public or private educational institution within its jurisdiction. The Committee welcomes initiatives taken by some State Parties which actively encourage schools to introduce ‘positive’, non-violent approaches to school discipline." A footnote states: "In formulating this paragraph, the Committee has taken note of the practice evolving elsewhere in the international human rights system, such as the interpretation given by the Committee on the Rights of the Child to article 28(2) of the Convention on the Rights of the Child, as well as the Human Rights Committee’s interpretation of article 7 of the International Covenant on Civil and Political Rights."
(HRI/GEN/1/Rev.4, page 73)
In examining States Parties’ reports, the Committee has expressed concern at persisting legality of school corporal punishment and recommended prohibition. For example, in its Concluding Observations on the UK’s report in 1997 it commented:
"The Committee is alarmed by the fact that corporal punishment continues to be practised in schools which are privately financed, and at the statement by the delegation that the Government does not intend to eliminate this practice.
"The Committee recommends that the State party take appropriate measures to eliminate corporal punishment in those schools in which this practice is still permitted, i.e. privately financed schools."
(CESCR: E/C.12/1/Add.19, 4 December 1997, paras. 16 and 28)
For more information on this Committee, visit their website: www.unhchr.ch/html/menu2/6/cescr.htm
Committee against Torture
The Committee is responsible for monitoring implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Extracts
Article 1
- For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, 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.
- This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 2
- Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
- No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.
- An order from a superior officer or a public authority may not be invoked as a justification of torture.
Article 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 I, 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. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.
- The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.
The Committee Against Torture has also condemned corporal punishment (see, for example, UN General Assembly Official Records, Fiftieth Session, A/50/44, 1995, para.177 and A/51/44, 1996, para. 65(i)).
For more information on this Committee, visit their website: www.unhchr.ch/html/menu2/6/cat.htm
Corporal punishment and juvenile justice standards
United Nations Standard Minimum Rules for the Administration of Juvenile Justice, the "Beijing Rules": Rule 17.3 (Guiding Principles in Adjudication and Disposition) states: "Juveniles shall not be subject to corporal punishment."
United Nations Rules for the Protection of Juveniles Deprived of their Liberty: Rule 67 states: "...all disciplinary measures constituting cruel, inhumane or degrading treatment shall be strictly prohibited, including corporal punishment..."
United Nations Guidelines for the Prevention of Juvenile Delinquency, the "Riyadh Guidelines": Paragraph 21(h) states that education systems should devote particular attention to "avoidance of harsh disciplinary measures, particularly corporal punishment" and paragraph 54 says "No child or young person should be subjected to harsh or degrading correction or punishment measures at home, in schools or in any other institutions."
European Committee of Social Rights
The European Committee of Social Rights (ECSR), which supervises conformity of the law and practice of member states of the Council of Europe with the European Social Charter, made the following "general observation" regarding Article 17 of the Charter and corporal punishment in 2000; it was published in 2001. Since then, in examining member-states reports under Article 17 the Committee has asked many for details of the legality of corporal punishment, in the home, schools and other institutions and day-care. "In some cases it has deferred reaching a conclusion on compliance until it receives more information. In 2003, in its Conclusions concerning Poland and other countries it found a violation of article 17 on the grounds that "corporal punishment of children in the home is not prohibited" (see details and other examples below; all documents relating to the European Social Charter can be viewed at www.humanrights.coe.int/cseweb/GB/GB1/GB1.htm).
General Observation on corporal punishment
"Whereas the Committee has not previously criticised any Contracting Party for not clearly prohibiting corporal punishment of children, it has requested information about legislation and practice in the Contracting Parties in particular as regards the protection of children against ill-treatment, with a view to re-examine the implementation of Article 17, in the light of national legislation and international conventions.
"While examining national situations, the Committee has observed that the UN Committee encourages countries to reform their legislation with a view to ensuring the prohibition of corporal punishment inter alia within the family, which is in line with the relevant provision in the Convention on the Rights of the Child.
"It has also observed that the European Court of Human Rights has held in a case where a young boy was beaten by his stepfather, who pleaded that the treatment in question amounted to "reasonable chastisement", that it was of sufficient severity to fall under the scope of Article 3 of the European Convention on Human Rights. The Court considered that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, required States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. It stated that "children and other vulnerable individuals, in particular, are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, the X and Y v. the Netherlands judgment of 26 March 1985, Series A no. 91, pp. 11-13, paras 21-27; the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports 1996-IV, p. 1505, paras 62-64; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37)."
"The Committee attaches great importance to the protection of children against any form of violence, ill-treatment or abuse, whether physical or mental. Like the European Court of Human Rights it emphasises the fact that children are particularly vulnerable and considers that one of the main objectives of Article 17 is to provide adequate protection for children in this respect.
"The Committee observes that in the last decades corporal punishment of children has been explicitly prohibited by law in several Contracting Parties. It observes that Recommendation No. R (90)2 on social measures concerning violence within the family adopted by the Committee of Ministers on 15 January 1990 in its Appendix, point 14 emphasises the general condemnation of corporal punishment and other forms of degrading treatment as a means of education.
"The Committee does not find it acceptable that a society which prohibits any form of physical violence between adults would accept that adults subject children to physical violence. The Committee does not consider that there can be any educational value in corporal punishment of children that cannot be otherwise achieved.
"Moreover, in a field where the available statistics show a constant increase in the number of cases of ill-treatment of children reported to the police and prosecutors, it is evident that additional measures to come to terms with this problem are necessary. To prohibit any form of corporal punishment of children is an important measure for the education of the population in this respect in that it gives a clear message about what society considers to be acceptable. It is a measure that avoids discussions and concerns as to where the borderline would be between what might be acceptable corporal punishment and what is not.
"For these reasons, the Committee considers that Article 17 requires a prohibition in legislation against any form of violence against children, whether at school, in other institutions, in their home or elsewhere. It furthermore considers that any other form of degrading punishment or treatment of children must be prohibited in legislation and combined with adequate sanctions in penal or civil law."
(Conclusions XV - 2, Volume 1, published in 2001)
- Article 17 of the European Social Charter ("The right of mothers and children to social and economic protection") states: "With a view to ensuring the effective exercise of the right of mothers and children to social and economic protection, the Contracting Parties will take all appropriate and necessary measures to that end, including the establishment or maintenance of appropriate institutions or services."
Committee's comments on corporal punishment to Belgium, Poland, Spain, UK, Slovak Republic, Ireland, France, Italy, Romania and Slovenia
Belgium:
"... The Committee observes from Summary Record of the 226th meeting of the United Nations Committee on the Rights of the Child that corporal punishment is unlawful in schools in Belgium. There is however no prohibition of corporal punishment of children within the family. The Committee observes that the United Nations Committee encourages Belgium to reform its legislation with a view to ensuring the prohibition of corporal punishment within the family. This would be in line with the relevant provision in the Convention on the Rights of the Child. "Referring to its general observation with respect to Article 17, the Committee asks the Government whether Belgian legislation contains a prohibition against corporal punishment exercised within the family and in institutions other than schools...
"The Committee defers its conclusion pending an answer to the questions asked about the extent to which legislation in Belgian prohibits the corporal punishment of children."
(Conclusions XV-2 vol. 1)
Poland:
"... The Committee wishes to know whether legislation prohibits all forms of corporal punishment of children, in schools, in institutions, in the home and elsewhere... Pending the receipt of the information requested, the Committee defers its conclusion."
(Conclusions XV-2 vol. 2)
"Ministerial Regulations prohibit the corporal punishment of children in public schools. The Committee requests information about the situation in private schools and in institutions; it notes that the corporal punishment of children in the home is not prohibited. Therefore, the situation is not in conformity with the Charter in this respect.
"The Committee notes that the Commissioner for Children's Rights work on the protection of children from violence, and his proposals for legislative reform in this regard. It wishes to be kept informed of all development in this area. It also notes the information provided in the report on the facilities available to children subject to ill treatment and abuse...
"The Committee concludes that the situation in Poland is not in conformity with Article 17 of the Charter on the following grounds: - corporal punishment of children in the home is not prohibited..."
(Conclusions XVI-2, Volume 2, Chapter 14)
Spain:
"The Committee notes from the Concluding Observations of the Committee on the Rights of the Child in respect of Spain's first report under the Convention on the Rights of the Child, that Article 154 of the Spanish Civil Code provides that parents "may administer punishment to their children reasonably and in moderation". The Committee notes that this would permit the corporal punishment of children, which is in breach of Article 17 of the Charter and it refers to its general observations on Article 17 in the General introduction. The Committee wishes to know whether this provision of the Civil Code has been amended, and further whether legislation prohibits the corporal punishment of children in schools, institutions and elsewhere. Meanwhile, it defers its conclusion."
(Conclusions XV-2 vol. 2)
UK:
"...As regards corporal punishment, the Committee notes that it was prohibited in private schools by the School Standards and Framework Act 1998, with the result that corporal punishment is now prohibited in all schools. The Committee wishes to be informed whether legislation prohibits corporal punishment in other institutions caring for children. It notes that not all forms of corporal punishment are prohibited within the family. The Committee refers to its general observations on Article 17 in the General introduction and decides to defer its conclusion on this point pending more information from the British Government on the situation and on its intentions in this regard. It also wishes to receive information on the situation in Northern Ireland and Scotland."
(Conclusions XV-2 vol. 2)
Slovak Republic:
"... The Committee wishes to know whether legislation prohibits the corporal punishment of children in the home, in schools, institutions, and elsewhere... Pending receipt of the requested information the Committee defers its conclusion."
(Addendum 1 to Conclusions XV-2)
"Protection from ill treatment and abuse
The Committee previously asked whether the corporal punishment of children in the home, in schools, institutions and elsewhere was prohibited by legislation. The current report provides no information on this subject, however the Committee notes that the concluding observations of the Committee on the Rights of the Child in respect of the Slovak Republic recommend such a prohibition. Therefore the Committee notes that there is no prohibition yet in place and concludes that the situation is not in conformity with the Charter on this point.
"Conclusion
The Committee concludes that the situation in the Slovak Republic is not in conformity with Article 17 of the Charter, as the corporal punishment of children is not prohibited."
(Conclusions 2003 Vol 2, pages 104-105)
Ireland:
"... There is a common law immunity, which permits parents and other persons in loco parentis to use reasonable and moderate chastisement in the correction of their children. The Committee refers to its general observations on Article 17 in the General introduction on this issue. It decides to defer its conclusion on this point pending information as to whether the Government intends to remove this immunity and prohibit all corporal punishment of children."
(Addendum 2 to Conclusions XV-2)
France:
"Protection from ill treatment and abuse
As regards corporal punishment of children, the Committee notes that according to the report corporal punishment of children is not explicitly prohibited in the home, in school or in other institutions. Although the Penal Code prohibits violence against the person and provides for increased penalties where the victim is under 15 years of age or where the perpetrator is related to the child or has authority over the child. The Committee notes that these provisions of the Penal Code do not necessarily cover all forms of corporal punishment and therefore finds that the situation is not in conformity with the Revised Charter..."Conclusion
The Committee concludes that the situation in France is not in conformity with Article 17€1 of the Revised Charter as the corporal punishment of children is not prohibited."
(Conclusions 2003 Vol 1, pages 185, 187)
Italy:
"Protection from ill treatment and abuse
... As regards corporal punishment of children, the Committee notes that the Corte di Cassazione declared all corporal punishment to be unlawful in a judgment of 18 March 1996. It wishes to know what the effect of this decision is."
(Conclusions 2003 Vol 1, page 321)
Romania:
"Protection of children from ill treatment and abuse
As regards the prevention of ill treatment and abuse, according to other sources 1 there are no national programmes focusing on abuse, violence or neglect of children within the family, although NGOs have done work in this area. The Committee wishes to know whether the Government intends to take measures in this respect. The Committee notes that legislation exists protecting children against any form of violence, ill treatment, abuse or neglect while in their parents care. However, it notes that all corporal punishment of children in the family is not prohibited. It notes in this respect that there is a draft children's law including a provision explicitly prohibiting corporal punishment in the family. It wishes to be kept informed of its progress. Meanwhile the Committee concludes that the situation is not in conformity with the Revised Charter on this point..."Conclusion
The Committee concludes that the situation in Romania is not in conformity with Article 17€1 of the Revised Charter as the corporal punishment of children within the family is not prohibited and as the level of non-attendance of compulsory schooling is too high."
(Conclusions 2003 Vol 2, pages 62, 65-66)
Slovenia:
"Protection from ill treatment and abuse
According to additional information received from the authorities there is no particular legislation prohibiting the corporal punishment of children within the family. The Committee finds the situation not to be in conformity with the Revised Charter in this respect..."Conclusion
The Committee concludes that the situation is not in conformity with the Charter as the corporal punishment of children within the family is not expressly prohibited..."
(Conclusions 2003 Vol 2, pages 175 and 177)