•
International law has evolved so that there is also a general prohibition on corporal
punishment against adults on the basis that it constitutes torture or cruel, inhuman or
degrading treatment or punishment (see for example General Comment 20 of the HRC).
•
Judicial sentences involving corporal punishment, regardless of whether they are
permissible under domestic law, will therefore violate the prohibition on torture and cruel,
inhuman or degrading treatment or punishment.
•
Torture or cruel, inhuman or degrading treatment or punishment can arise in the context
of the death penalty at several stages, including the method of execution, failure to follow
procedural requirements and conditions and length of time on death row.
•
There is evolving authority for the proposition that the implementation of the death
penalty per se breaches the prohibition against torture and/or cruel, inhuman or degrading
treatment or punishment.
(ii)
the prohibition on torture and other forms of ill-treatment as a rule of customary
international law which is reflected in the jurisprudence of international, regional
and national tribunals and the statements of academics and such international
bodies as the Human Rights Committee and the Committee against Torture.
•
The prohibition on torture and other cruel, inhuman or degrading treatment or punishment
is a rule of customary international law.
•
The prohibition on torture is a peremptory norm or jus cogens (see for example General
Comment 24 of the HRC; Prosecutor v Furundzija, 10 December 1998 of the ICTY; R v
Bow Street Magistrate, ex parte Pinochet (No.3) [2000] 1 AC 147; and Attorney General
v Zaoui, [2005] NZSC 38 at [51]).
•
Customary international law is derived from state practice. When states all act in a certain
way, reflecting a generally held belief that to act that way is required by law, this is the
basis of customary international law.
•
Where a norm is accepted and recognised by the international community of states as a
norm from which no derogation is permitted and which can be modified only by a
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