Shubhankar Tiwari and Kaartikay Agarwal who are both students at National Law University, Delhi, India, discuss the use of flogging as a criminal punishment in the 21st Century...
On 9th January 2015, in front of the Jeddah Mosque, a Saudi activist and blogger named Raif Badawi was publicly given the first fifty out of the thousand lashes he was sentenced with, for ‘insulting Islam through electronic channels.’ The disturbing incident instantaneously became viral on social media and the #JeSuisRaif movement gained momentum. Saudi Arabia faced immense backlash from the international community for this gross violation of human rights. But completely undeterred by this backlash, in June 2015 the Supreme Court of Saudi Arabia upheld Badawi’s conviction which initiated a prolonged fight between the government and several human rights groups. It was only after nearly half a decade on April 25, 2020 that the Supreme Court of Saudi Arabia abolished flogging as a form of punishment to ‘bring the kingdom into line with international human rights.’ While such a move from Saudi Arabia is much appreciated, it has rekindled the debate over such a kind of punishment as it still prevails in many parts of the world.
In this article, we have followed a two-pronged approach. In the first leg, we have tried to characterize flogging by throwing light over its history, its status in the criminal justice system, and how many countries still rampantly use it as a form of punishment. Then in the second leg (which includes the last two sections), we have highlighted the measures under International law that can help us in completely abolishing this practice in years to come.
The history of flogging dates back to the Age of the Roman Empire where it used to precede crucifixion, including the crucifixion of Jesus. The revered Jewish text ‘The Torah’ also mentions flogging as a form of punishment and specifies that not more than 40 lashes must be given for an offense that doesn’t merit capital punishment. The Whipping Act, 1530 of England had authorized flogging for petty offenses (for instance theft, poaching, blasphemy, etc.). To make matters worse, this Act used flogging as a treatment for insanity as well. During the Age of Slavery in the US, the masters used flogging as a measure to discipline their slaves. The iconic picture of ‘Whipped Peter’ from the American Civil War times bears strong testimony to such a practice. In Imperial Russia, knouts were used to whip the political transgressors until its abolishment in 1845.
However, with the passage of time, flogging was only used against violent crimes and the authorities started resorting to private flogging instead of public flogging in order to evade public backlash. Eventually, the rise of a massive wave against slavery and corporal punishment resulted in such practices withering away from the aforementioned regions. For instance, towards the middle of the 20th century, the Criminal Justice Act of 1948 prohibited this practice completely in the UK. But there are still many countries like Indonesia, Iran, Sudan, Maldives, etc. that practice flogging as the Sharia law provides for the usage of this measure against certain transgressions. In the past decade, Maldives had become notorious for flogging its abused and raped women on charges of adultery. Earlier this year in Aceh(the only Indonesian region that implements Sharia law), a female flogging squad was constituted in order to punish the women violating the Islamic law. All these examples give a clear cut indication of the magnitude of the problem we’re faced with. Therefore, in the next section, we provide an insight into the international human rights standards prevailing in order to combat this problem.
It is noteworthy that the International Human Rights Law prohibits judicial verdicts imposing corporal punishment, including flogging, as constituting torture or inhuman or degrading treatment. Corporal punishment violates internationally recognized human rights to freedom from cruel, inhuman, and degrading treatment or punishment, and freedom from physical violence. The Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (UNCAT) also prohibit torture and “cruel, inhuman, or degrading treatment or punishment.” Various United Nations organs, including the UN High Commissioner for Human Rights and the UN Human Rights Committee, have made it clear that flogging amounts at the very least to cruel and inhuman punishment. Under Article 7 of the ICCPR, all degrading treatment is prohibited. Furthermore, in Osbourne v. Jamaica the HRC stated 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 and degrading treatment or punishment contrary to Article 7 of the Covenant.”
The Human Rights Commission has conceptualized a wide assessment of whether particular treatment constitutes a violation of Article 7 “depends on all circumstances of the case, such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age, and state of health of the victim.” Article 10 of the ICCPR further prohibits torture and ill-treatment for those who have been stripped of their liberty. This definition becomes particularly important when protecting the civil and political rights of disenfranchised groups who face the brunt of punishments such as flogging. Corporal punishment measures like flogging harm the bodily integrity of an individual and expose them to not only physical pain but also community degradation and humiliation. Such mistreatment by the state leaves them further vulnerable to exploitation and they are forced to deal with social isolation after such public displays of the state imposing its morality.
The United Nations Convention Against Torture (also, UNCAT) had previously urged Saudi Arabia to ‘re-examine’ its system of corporal punishment, which has much to do with the abolishment of flogging that took place in the country. The UNCAT requires states to prevent “other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture…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.” However, the UNCAT provides no definition of such acts. The Committee Against Torture which monitors the implementation of UNCAT, has itself recognized that “in practice, the definitional threshold between cruel, inhuman or degrading treatment or punishment and torture is often not clear.” Therefore, it becomes absolutely necessary to make such distinctions more lucid so that the states can’t use these loopholes as a means to curb dissent.
Evidently, International law and its corresponding institutions are increasingly facing dynamic challenges across the globe. While recent developments in countries (as happened in the case of Saudi Arabia) are a step in the right direction, much is left to be desired in terms of action by international institutions in taking action against state actors for acts such as flogging which violate the basic norms of human rights. Although we have proper guidelines for corporal punishment in the United Nations Convention on the Rights of the Child, there exist no strict safeguards in the international community against such practices. International bodies need to build global consensus on prohibiting such practices and ensuring that no human being is mistreated. The states often take advantage of the vagueness as well as the lack of enforcement mechanisms that International law has and continue their inhumane policies. Although recent protests have again ignited the hope for reform, the least the international community can do is give the protestors and victims a platform which they so genuinely lack in their home states. Flogging represents one of the foremost tools still used by states to quell dissent and diversity and the International community needs to take note of this injustice. Such policies are often defended on the basis of their historical and religious reasons but the states need to be reminded about the proportionality of such measures. No custom that is inhumane can be defended on the basis of the right to religion which is again subject to reasonable restrictions when it violates basic human rights. Large scale international condemnation and the threat of sanctions might go a long way in nudging states to stop such practices. It is too late to adopt the proverbial ostrich’s attitude when the problem is staring us right in the face.
Shubhankar Tiwari is a second-year student pursuing B.A. LL.B.(Hons.) at National Law University, Delhi.
Kaartikay Agarwal is a first-year student pursuing B.A. LL.B.(Hons.) at National Law University, Delhi.
Suggested citation: Shubhankar Tiwari and Kaartikay Agarwal, Flogging as Criminal Punishment in the 21st Century, JURIST – Student Commentary, June 23, 2020, https://www.jurist.org/commentary/2020/06/tiwari-agarwal-flogging-punishment/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at firstname.lastname@example.org
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