Summary of law reform necessary to achieve full prohibition

Prohibition is still to be achieved in the home, penal system and alternative care settings.

We have been unable to establish whether or not legislation confirms a right of parents and others to punish or correct a child, but legal provisions against violence and abuse are not interpreted as prohibiting corporal punishment of children. The near universal acceptance of a certain degree of violence in childrearing necessitates clarity in law that no degree of corporal punishment is acceptable or lawful. All legal defences should be repealed and explicit prohibition of all corporal punishment should be enacted in relation to parents and all those with parental authority.

All judicial corporal punishment of children (under 18) convicted of an offences should be prohibited, including under Islamic law. Explicit prohibition should also be enacted of corporal punishment as a disciplinary measure in all institutions accommodating children in conflict with the law and in all alternative care settings, including public and private day care, residential institutions, foster care, etc. Laws authorising or regulating corporal punishment of children in any of these settings should be repealed.

Current legality of corporal punishment

Home

Corporal punishment is lawful in the home. Provisions against violence and abuse in Act No. 17 (1992), the Penal Code (1953), the Child Protection Act (1997), the Constitution (1969) and the Promotion of Freedom Act No. 20 (1991, incorporating the Great Green Document on Human Rights 1988) are not interpreted as prohibiting corporal punishment in childrearing. A draft new Penal Code was under discussion in 2007. To our knowledge this has not yet been adopted.

Schools

Corporal punishment is prohibited in schools under the School Discipline Ordinance for Schools, the Regulations concerning Primary and Preparatory (Basic) Education, the Regulations concerning Secondary (Intermediate) Education (1979) and the Regulation concerning Student Discipline (1983).

Penal system

Corporal punishment is lawful as a sentence for crime: there is no explicit prohibition of its imposition on child offenders. Article 2 of the Declaration on the Establishment of the Authority of the Peoples (1977) states that “the Holy Quran is the Constitution of the Socialist People’s Libyan Arab Jamahiriya” and in the 1970s amendments to the Penal Code introduced hadd punishments into state legislation. Flogging and amputation may be ordered under Law No. 70 (1973) concerning sexual offences, Law No. 13 (amended 1995) concerning theft and armed robbery, Law No. 52 (1974) concerning sexual slander, and possibly the Law on Prohibition (1973) relating to alcohol consumption and the Law on Homicide (1973).

Principle 2 of the Great Green Document on Human Rights (1988) states: “Jamahiri society prohibits penalties that detract from human dignity and are detrimental to human well-being, such as hard labour and long-term imprisonment. Jamahiri also prohibits the infliction of physical or mental harm on the person of a prisoner….” But there is no explicit prohibition of corporal punishment as a disciplinary measure in penal institutions.

Alternative care

No information.

Prevalence research

None identified.

Recommendations by human rights treaty bodies

Committee on the Rights of the Child

“The Committee welcomes the prohibition of corporal punishment in schools and takes note of the information that measures have been adopted to report and investigate maltreatment of children. Nevertheless, it is concerned at the lack of information on the actual situation in the State party with respect to ill-treatment of children within the family. Further, it regrets the lack of information on prevention and awareness-raising activities.

“The Committee recommends that the State party:

1. conduct a comprehensive study to assess the nature and extent of ill-treatment and abuse of children, as well as other domestic violence, and use the results to design policies and programmes to address this issue;
2. carry out preventive public education campaigns about the negative consequences of ill-treatment of children and promote positive, non-violent forms of discipline as an alternative to corporal punishment;
3. take the necessary measures to prevent violence against, and abuse of, children….

“The Committee recommends that the State party:

c) take legislative measures formally to abolish flogging as a punishment….”

(4 July 2003, CRC/C/15/Add.209, Concluding observations on second report, paras. 33, 34 and 46)

“The Committee expresses its concern about the lack of prohibition in local legislation of the use of corporal punishment, however light, at home. In the view of the Committee, this contravenes the principles and provisions of the Convention.

“The Committee suggests that the State party take all appropriate measures, including of a legislative nature, with the aim of prohibiting corporal punishment at home. The Committee also suggests that awareness-raising campaigns be conducted to ensure that alternative forms of discipline are administered in a manner consistent with the child’s human dignity and in conformity with the Convention….”
(4 February 1998, CRC/C/15/Add.84, Concluding observations on initial report, paras. 14 and 29)

Committee Against Torture

“The Committee notes with satisfaction that application of corporal punishment has not been used in recent years.

“Although corporal punishment has not been practised in recent years, it should be abolished by law.”
(11 May 1999, A/54/44, paras. 176-189, Concluding observations on third report, paras. 180 and 189)

Human Rights Committee

“The Committee remains deeply concerned that corporal punishment such as amputation and flogging are prescribed by law even if rarely applied in practice. They constitute a clear violation of article 7 of the Covenant. (art. 7)

The State party should immediately stop the imposition of all corporal punishment and repeal the legislations for its imposition without delay, as stipulated in the previous concluding observations of the Committee.

“The Committee notes with concern that the continued practice and legal provisions regarding qisas (retribution) and diyah (payment), which may contribute to impunity, remain in force. (arts. 2, 7, 10 and 14)

The State party should review the laws and practice of qisas and the diyah in light of the Covenant.”
(15 November 2007, CCPR/C/LBY/CO/4, Concluding observations on fourth report, paras. 16 and 17)

“Furthermore, the Committee recalls that flogging, which is recognized in the Libyan Arab Jamahiriya as a penalty for criminal offences, is incompatible with article 7 of the Covenant. The imposition of such punishment should cease immediately and all laws and regulations providing for its imposition should be repealed without delay. Amputation, although not used in practice, according to the Delegation, should be formally abolished.”
(6 November 1998, CCPR/C/79/Add.101, Concluding observations on third report, para. 11)

“The Committee is seriously concerned at information it has received from United Nations and other reliable sources concerning summary or extra-judicial execution and torture perpetrated by the Libyan security forces. It deplores the introduction of cruel punishments such as flogging and amputation. The practice of arbitrary arrest and detention, the detention of persons sentenced after unfair trials and the length of pre-trial detention are also matters of serious concern. The Committee regrets the lack of information about certain identified people who are said to be held in incommunicado detention without trial for lengthy periods and of persons who oppose the government and are said to have disappeared.”
(23 November 1994, CCPR/C/79/Add.45, Concluding observations on second report, para. 9)

Universal Periodic Review

Libya was examined under the Universal Periodic Review process in 2010. During the review the Government stated that the Penal Code is being reviewed and corporal punishment will be repealed. The Government’s response to recommendations to abolish corporal punishment is expected in March 2011.