'Their Way of Punishing': Corporal Punishment by Indigenous Peoples and the Prohibition of Torture

Abstract

Both the prohibition of torture and other cruel, inhuman and degrading treatments and the right of indigenous peoples’ to self-determination and cultural integrity are vital features of the character of modern international law. These two essential components of modern international law, however, do not always seem to see eye to eye, and one particular point of conflict is in relation to corporal punishment as a criminal sanction in indigenous communities. Practices such as flogging and the stocks would normally be considered to fall within the realm of torture or at least some kind of cruel, inhuman or degrading treatment under the various international instruments covering such conducts. However, notions of cultural integrity and identity cause uncertainty as to what status should these practices actually have in the context of indigenous peoples rights. This paper seeks to offer a way to solve the disagreement between these two fundamental aspects of modern international human rights law. Specifically, while claiming that indigenous corporal punishment should be judged under the same standard for torture as any other form of corporal punishment, it also proposes that states should seek to establish transitional consultation processes under ILO Convention 169 to seek to discourage indigenous practices that breach international standards.