Practice Relating to Rule 91. Corporal Punishment

The disciplinary regime in places of internment shall be consistent with humanitarian principles, and shall in no circumstances include regulations imposing on internees any physical exertion dangerous to their health or involving physical or moral victimization. 

The following acts are prohibited at any time and in any place whatsoever:

[The 1949 Geneva Convention IV] prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination. This prohibition applies not only to murder, torture, corporal punishment, mutilation or medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other form of brutality, whether applied by civilians or by military personnel. 

1. [The 1977 Additional Protocol I] provides that all persons in the power of a party to the conflict are entitled to at least a minimum of humane treatment without adverse discrimination on grounds of race, gender, language, religion, political discrimination or similar criteria. It states in part:

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

(3) corporal punishment;

Although [The 1977 Additional Protocol II]contains no provisions relating to enforcement or punishment of breaches, it does contain a statement of fundamental guarantees prohibiting at any time and anywhere:

Article 30: During periods of exceptional circumstances, state of emergency or state of siege, actions of the defence forces must conform to national law and international humanitarian law.

Article 31: Defence forces personnel must in all circumstances refrain from committing the following acts: … corporal punishment … and all other acts affecting the physical and/or psychological integrity as well as the well-being of individuals. 

Article 30: During periods of exceptional circumstances, state of emergency or state of siege, actions of the defence forces must conform to national law and international humanitarian law.

Article 31: Defence forces personnel must in all circumstances refrain from committing the following acts: … corporal punishment … and all other acts affecting the physical and/or psychological integrity as well as the well-being of individuals. 

The disciplinary and punishment rules applicable in the army of the imprisoning country will also apply to the prisoners-of-war … corporal punishment, torture and imprisonment under inhumane conditions are absolutely forbidden. 

What is the right to protection of persons not deemed prisoners of war? Primarily, these are civilians who play a direct part in hostilities, but also to mercenaries … The use of violence against such persons is prohibited (… no corporal punishment, etc.). 

It is expressly prohibited to carry out the following acts against the civilian population or individual civilians, wounded, sick or prisoners:

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The fundamental norms/val[u]es which underlie the LOAC are:

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- Specific areas of fundamental protection are … lives and health of all persons (prohibitions against murder, torture, corporal punishment and mutilation)[.] 

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Disciplinary punishments applicable to POW [prisoners of war] are the same that can be imposed upon members of the armed forces of the Detaining Power. However, collective punishment, corporal punishment, imprisonment without daylight, torture, cruelty and deprivation of rank are forbidden.

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[1949] Geneva Convention IV articles 28 to 34 grant further protection to civilians. These articles determine the following:

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With regard to penalties, imprisonment in premises without daylight, and, in general, all forms of cruelty without exception are forbidden. …

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In no case shall disciplinary penalties be inhuman, brutal or dangerous for the health of the internees. Account must be taken of the internees[’] age, sex and state of health.

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The following prohibitions exist regarding conduct in occupied territories (Geneva Convention IV articles 31 to 34):

[N]o person who is captured or detained in relation to an armed conflict remains unprotected under the law of armed conflict and is entitled, at all times, to minimum guarantees. [These include] … prohibition of the following acts at any time and in any place, whether committed by civilian or military agents:

- persons taking no active part in the hostilities;

- members of armed forces who have laid down their arms;

- those placed hors de combat by sickness, wounds, detention, or any other cause. 

The following acts against protected persons “are and shall remain prohibited at any time and in any place whatsoever”. These are:

The people’s police of a prison shall not commit any of the following acts:

If the people’s police of a prison commit any act specified in the preceding paragraph and the case constitutes a crime, the offenders shall be investigated for criminal responsibility; if the case does not constitute a crime, the offenders shall be given administrative sanctions. 

Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 

Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 

Children committing an offence enjoy exemption from legal liability. … When, in case of grave offences, corporal chastisement is considered necessary for the correction of the child committing the offence, the chastisement shall be inflicted in a way that it may not incur the liability of Diyat [monetary compensation under Sharia law]. 

Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … [and in] the two additional protocols to these Conventions … is liable to imprisonment. 

Sec. 4. Definitions.– As used in this Rule,

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Sec. 30. Guiding Principles in Judging the Juvenile.– Subject to the provisions of the Revised Penal Code, as amended, and other special laws, the judgment against a juvenile in conflict with the law shall be guided by the following principles:

“SUBCHAPTER V—SENTENCES

Ҥ 949s. Cruel or unusual punishments prohibited

“Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a military commission under this chapter or inflicted under this chapter upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited under this chapter. 

Ҥ 949s. Cruel or unusual punishments prohibited

“Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a military commission under this chapter or inflicted under this chapter upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited under this chapter. 

Every person is entitled to inviolability of the physical body. …

Emergency custody, arrest, temporary detainment or detention must abide by this Law. Torture, extortion of deposition, corporal punishment or any treatments violating a person’s body, life and health are [prohibited]. 

The criterion which must be applied in order to determine whether a punishment is cruel and unusual within the meaning of s. 12 of the Charter is, to use the words of Laskin C.J. in Miller and Cockriell, supra, at p. 688, “whether the punishment prescribed is so excessive as to outrage standards of decency”. In other words, though the state may impose punishment, the effect of that punishment must not be grossly disproportionate to what would have been appropriate. 

[S]ome punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment, such as the lash, irrespective of the number of lashes imposed. 

When Canada adopted the Charter in 1982, it affirmed the opposition of the Canadian people to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. A punishment is cruel and unusual if it “is so excessive as to outrage standards of decency”: see R. v. Smith, [1987] 1 S.C.R. 1045, at pp. 1072–73, per Lamer J. (as he then was). It must be so inherently repugnant that it could never be an appropriate punishment, however egregious the offence. Torture falls into this category. The prospect of torture induces fear and its consequences may be devastating, irreversible, indeed, fatal. Torture may be meted out indiscriminately or arbitrarily for no particular offence. Torture has as its end the denial of a person’s humanity; this end is outside the legitimate domain of a criminal justice system … Torture is an instrument of terror and not of justice. As Lamer J. stated in Smith, supra, at pp. 1073–74, “some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment”. As such, torture is seen in Canada as fundamentally unjust. 

The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …

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On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …

South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.

After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.

Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.

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The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …

The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …

South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …

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… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.

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To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.

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Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.

Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.

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To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …

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According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.

This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].

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I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.

For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.

This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.

In the result, the preliminary point is dismissed. The trial must proceed. 

In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.

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Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:

Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.

This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.

Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.

The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …

Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.  [footnotes in original omitted]

If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris. 

International humanitarian law contains in Additional Protocol I to the Geneva Conventions a series of basic fundamental guarantees which apply to any person in a conflicting party’s custody. The persons to whom it applies, for example people who do not have the status of prisoners of war, must always be treated humanly and guaranteed right to personal integrity, honour, belief and religion. The following acts, which involve violence against persons’ life, health or physical or mental well being, are without exception prohibited, this is regardless of whether they relate to civilian or military officials:

Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 

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Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions.  [footnotes in original omitted]

12. The treaties setting out rules of IHL are supplemented by rules of customary international law (CIL), i.e. rules which are recognized as binding by States, even though they do not appear in treaty texts. ... [I]n relation to the rules described below the Government accepts that they reflect CIL. It is suggested that the rules which are of most relevance to this inquiry are:

Corporal punishment [a variety of methods of punishment, including flagellation, stoning, amputation of ears, fingers, toes or limbs, and branding or tattooing] is inconsistent with the prohibition of torture and other cruel, inhuman or degrading treatment or punishment enshrined, inter alia, in the [1948 Universal Declaration of Human Rights, 1966 International Covenant on Civil and Political Rights], the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 

While noting that corporal punishment has not been imposed as a sanction by the courts for about 20 years, the Committee expresses concern that it is still statutorily permitted, and that it is still used as a prison disciplinary punishment … (art. 7 [of the 1966 International Covenant on Civil and Political Rights]).

The Committee reiterates its deep concern that corporal punishments such as flogging, and in a few cases even amputation of limbs, are still prescribed by law and practised in the State party, in violation of article 7 of the [1966 International Covenant on Civil and Political Rights] [no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment].

The Committee notes with concern the scale of values applied to punishment in the State party’s legislation. It considers that corporal punishment including flogging and amputation is inhuman and degrading … (arts. 2, 7, 10 and 14 of the [1966 International Covenant on Civil and Political Rights]).

The Committee notes that the author has made specific and detailed allegations concerning his punishment. The State party has not responded to these allegations. The Committee notes that the author was sentenced to 6 strokes of the tamarind switch and recalls its jurisprudence, that, irrespective of the nature of the crime that is to be punished, however brutal it may be, corporal punishment constitutes cruel, inhuman and degrading treatment or punishment contrary to article 7 of the [1966 International Covenant on Civil and Political Rights]. The Committee finds that the imposition of a sentence of whipping with the tamarind switch on the author constituted a violation of the author’s rights under article 7, as did the manner in which the sentence was executed. 

Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 [of the 1950 European Convention on Human Rights]. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects and, in some instances, the sex, age and state of health of the victim … The Court considers that treatment of this kind reaches the level of severity prohibited by Article 3.