‘Their Way of Punishing’ Corporal Punishment by Indigenous Peoples and the Prohibition of Torture
| Author | Alonso Gurmendi Dunkelberg |
| Published date | 01 December 2015 |
| Date | 01 December 2015 |
| DOI | http://doi.org/10.1177/016934411503300403 |
| Subject Matter | Part B: Article |
Netherlands Q uarterly of Human Ri ghts, Vol. 33/4, 382–404, 2015.
382 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
PART B: ART ICLE S
‘THEIR WAY OF PUNISHING’
CORPORAL PUNISHMENT BY INDIGENOUS
PEOPLES AND THE PROHIBITION OF TORTURE
A G D*
Abstract
Both the right of indigenous peoples to c ultural integrity and th e prohibition of torture
and other cruel, inhuman and d egrading treatments and punishments are vital features
of the character of modern intern ational law. However, these two essential compone nts
of modern international law do not a lways appear to see eye to eye with regards to
corporal punishment as a criminal sanction in indigenous communities. Practices
such as og ging and the stocks would normally be considered to fall within the torture
spe ctr um o r at l eas t som e ki nd of cru el, inhu man o r de grad ing t rea tmen t or p uni shme nt
under the various intern ational instruments covering such crime s. However, notions of
cultural integrity and identity cau se uncertainty as to what status these prac tices should
actually have in the context of indigenous pe oples’ rights. is article seeks to explain
and o er a way to solve this disagree ment. Speci cally, while claiming that indigenous
corporal punishment should be judged under the same standard as any other form of
corporal punishment, it also proposes th at, instead of a merely punitive approach, states
should seek to establish transitional cons ultation processes under ILO Convention 169
to seek to discourage indigenous practices that brea ch international standards.
Keywords: corporal pu nishment; cruel, inhuman a nd degrading treatment; cultural
integrity; ind igenous rights; torture
1. INTRODUCTION
Both the prohibition of torture a nd other Cruel, Inhuman and Degrading Treatment
and Punishments (CIDTPs) and the rig ht of indigenous peoples’ to self-determination
* Professor of Internat ional Law at Universidad del Pací co (Lima, Peru). I wish to thank Professors
Santiag o Canton, Analía Ban , Mic helle M Ueland, Eun Hee Han and Yasmin e L Harik for their
contributions and c omments on previous versions of th is article. I als o wish to thank Ms . Carolina
Jatene and Prof. Carlos J Z elada for their va luable comments to later dra s of this a rticle. Ms.
Carolina Ne yra Sevil la provided valuable a ssistance in t he nal sta ges of revision. e opinions
o ered in this ar ticle are my own.
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Netherlands Q uarterly of Human Ri ghts, Vol. 33/4 (2015) 383
and cultura l integrity are vital features of the cha racter of modern international law.
Torture, once considered an acceptable, if not fairly common way to ha ndle criminal
matters, is now one of the most serious violations of huma n rights that an individual
can commit. Torture is subject to an absolute prohibition under international law1
and those who commit it have been adequately described as hostis humani generis,
enemies of humankind.2 e right of indigenous peoples to self-determination and
cultural i ntegrity has been one of international law’s main developments of the past
three decades.3 Indeed, while once completely indi erent to t he needs of indigenous
populations, nowadays international law “recogni zes the right of ethnic g roups to
special protection on their use of their own language, for the pract ice of their own
religion, and, in general, for a ll those characteristics nece ssary for the preservation of
their cultur al identity.”4
ese two essential components of modern international law, however, do not
always appear to see eye to eye, a nd one particular poi nt of con ict is in relation
to corporal punishment as a criminal sanction in indigenous communities. Indeed,
in many countries, a nd in particular i n the Americas, indigenous cu stomary laws
are given speci c legal recognition.5 As such, t hese communities are legal ly entitled
to punish crimes within their jurisd iction. However, the penalties imposed can be
– to put it mildly – highly u northodox. In Ecuador, for example, criminals have
been punished by public ogging, li ing heavy objects, public nudit y and soaking
in freezing waters.6 In Colombia, indigenous communities sanction crimina ls to
the stocks for prolonged periods of ti me, sometimes every nig ht for as long as three
years.7 In Boliv ia, under the guise of ind igenous customary law, several cases of public
1 Convention again st Torture a nd Other Cruel, Inhuman or Deg rading Treatment or Punishment,
(adopted 10Decemb er 1984, entered into force 26 June 1987) 1465 UN TS 85 (UNCAT) art 197
(stating that “[n]o exceptional c ircumstances whatsoe ver (…) may be invoked as a justi cation of
torture”).
2 Filartiga v. Pena-Irala, 630 F 2d 876, 890 (2d Cir. 1980) (stating that “the tort urer has become like
the pirate and sl ave trader before him hosti s humani generis, an ene my of all mankind ”).
3 James Anaya, ‘Int ernational Human R ights and Indigenous People s: e Move Toward the
Multicultu ral State’ (2004) 21(1) Arizona Journal of Int’ l & Comp Law 13.
4 Yanomami Case, Inter-American Comm ission of Human Rig hts, C No 7615 (Brazil) Res 12/85, para
7 (5March 1985).
5 Constitution of t he Republic of Ecuador (Const itución de la República del Ec uador), art 57.10
(stating that ind igenous communities have a rig ht to create, develop, apply and pract ice their own
laws); Political Const itution of the Plurinationa l State of Bolivia (Constitución Pol ítica del Estado
Plurinaciona l de Bolivia), art 3 0.II.14 (stating that indi genous peoples have a right to t heir own legal,
political a nd economical system s); Political Constitution of t he Republic of Peru (Constituc ión
Política de la Repúblic a del Perú), art 89 (stating that indi genous communities are autonomous in
their administration).
6 See Luis Esteba n González Man rique, ‘¿Justicia Indígena o Ba rbarie?’ Real Instituto Elcano ARI
13/2011 at 4. Examples of these pra ctices can be seen in t he following videos: accessed 1Sept ember 2015.
watch?v=kMrHlvopY0w and w ww.youtube.com/watch?v=5Wk KxrxWEN8> acces sed 1September
2015.
7 Judgment T-349/96, Section 2.4.1. 8 August 1996 (Constitutional C ourt of Colombia) available at:
Alonso Gurmendi Dunkelberg
384 Intersentia
lynching have been reported and at leas t one individual was buried alive without due
process of law.8
Such practices would general ly be considered torture, or at least some kind of
CIDTP under the various international instruments coveri ng such crimes.9 Indeed,
outside the scope of indigenous criminal sanctions, severa l ancestral and religious
practices have been sternly condemned by t he international community, such as
female genital mutilation.10 Moreover, the UN Special Rapporteur on Torture and
other Cruel, Inhuman or Deg rading Treatment or Punishment (the UN Special
Rapporteur on Torture) has stated that corporal pun ishment is a form of CIDTP.11
However, the importance of self-determination and cu ltural integrity seems to be
having an in uenc e in the way indigenous corpora l punishment is understood. Indeed ,
“indigenous custom and cu stomary law are important aspects of the contemporary
human rights regime as it concerns indigenous peoples.”12 As such, some argue that
not all indigenous corpora l punishments should be seen as amounting to torture
or CIDTPs, and that their lega lity should be analysed t aking into consideration the
cultural background of the indigenous community that prescribes them.13 is clash
of legal regimes can therefore be seen as either a direct chal lenge to the absolute
character of the prohibition of tortu re, or as an a rmation of cultura l tolerance and
indigenous self-determination.
On some occasions, questions regard ing these issues have al ready been dealt with by
domestic courts in t he Americas. In Colombia, the Constitut ional Court determined
that the practice of “fuete” by the Paece co mmunity, th at is, ogging of the legs with a
riding crop, did not amount to tortu re or other CIDTPs given the mildness of t he pain
induced and its intended purpose.14 A lter nati vely, i n Ecu ador, i ndi genou s lead ers w ho
sentenced ve indiv iduals to ogging a nd other unorthodox penalties were arrested
for torture and kidnapping. In response, they in turn submit ted their cases to the
8 ’Exhuman e l cuerpo de bolivia no que fue enterrado vivo con su supuesta v íctima’ La Razon (La
Paz, 10 June 2013), seguridad _ciudadana/Exhuman-boliviano-
enterrado-supuest a-victima_0_1849015177.html> accesse d 1September 2015 (stating that at least
four of these cas es have been reported).
9 UNCAT, art 1 (de ning torture as “any act by which severe pain or su ering… for such pur poses
as obtaini ng from him or a third person i nformation or a confession, puni shing him for an act he
or a third person ha s committed”). But comp are with: Oswa ldo R Ruiz-Chirib oga, ‘Indigenous
Corporal Pu nishment in Ecu ador and the Prohibition of Tortu re and Ill Treatment’ (2013) 28(4) Am
U Int’l L Rev 975 (cla iming that not all of t hese practices wou ld constitute torture or C IDTP).
10 UNGA Res 67/146 (5March 2013) UN Doc A/Res/67/146 (dealing with intensifying global e orts
for the elimi nation of female genital muti lations).
11 UNCHR Speci al Rapporteur on tort ure and other cruel, i nhuman or degrad ing treatment or
punishment, ‘St udy on the phenomena of torture , cruel, inhuman or d egrading treat ment or
puni shme nt in t he worl d, in cludi ng an asse ssmen t of con ditio ns of d etent ion’ (5Fe brua ry 2 010) UN
Doc A/HRC/13/39/Add.5 para 209 (U N Special Rapporteu r on Torture Report).
12 Anaya (n 3) 49.
13 Ruiz-Chiriboga (n 9) 1014.
14 Judgment T-523/97, Section 3.3.3. 15October 1997 (Const itutional Court of C olombia), available at
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Netherlands Q uarterly of Human Ri ghts, Vol. 33/4 (2015) 385
Ecuadorean Constit utional Court claiming a v iolation of their constitutional right to
enjoy their own laws.15
It is therefore only a matter of time before one such case reaches internat ional
fora, and in part icular, the Inter-American Human Rights System. Given the System’s
consistent focus on indigenous issues,16 it will be i mportant to have a vivid and
engaging debate on how the Inter-American judges should approach and address
corporal punish ment and the prohibition of torture. is article seeks to contribute
to this debate by arguing that while indigenous peoples’ right to self-determination
and cultura l integrity is paramount to modern i nternational law, it cannot serve as an
excuse for diminishing the absolute character of the prohibition of torture because
of the negative consequences it would create for the huma n rights regime worldwide.
Rather, the determination of torture should be ascribed to a single, standard legal
regime and practices exc eeding this m inimum standa rd should be actively discouraged
by the international communit y.
is article is divided i nto ve sections. Sections 2 and 3 respectively explore
the concepts of indigenous corpora l punishment and torture and CIDT Ps. Section
4 determines the statu s of corporal punishment in general w ithin the international
human rights regime. Later Section 5 o ers an analysis of corporal punishment and
human rights in t he context of indigenous peoples’ rights. Speci cally, this Section
arg ues tha t there i s no par ticul ar reas on why in digenou s corpor al pun ishment should
di er from the general standard for torture and CIDTPs as applied for corporal
punishment outside the realm of i ndigenous rights. Section 6 o ers comments and
recommendations as to how the incompatibilit y of indigenous corporal punishment
and international human rights can be resolved in the near future. Lastly, section 7
o ers t he article’s conclusions.
2. WHAT IS INDIGENOUS CORPORAL PUNISHMENT?
Concern over the rights of indigenous peoples ha s been a relatively new development in
human rights law. Other tha n the 1989 Indigenous and Tribal Populations Convention
(169) of the International Lab our Organization17, indigenous peoples’ r ights were not
at the forefront of international human rights l aw throughout the 20th century. One of
the major recent developments in the eld of indigenous peoples’ rights is the United
15 Anaya (n 3) 977–978.
16 See Case of the Maya gna (Sumo) Awas Tingni Commu nity v. Nicaragua (Merits, Repar ations and
Costs Judgment) Inter-Amer ican Court of Human Right s Series C No 79 (31August 2001); Case
of the Saramaka People v. Suriname (Prelimina ry Objections, Mer its, Reparations a nd Costs
Judgment) Inter-American C ourt of Human Rig hts Series C No 172 (28 November 2007); Case
of the Kichwa Indigenous People of Sarayaku v. Ecuador (Merits and Reparations Judg ment) Inter-
American C ourt of Human Right s Series C No 245 (27June 2012).
17 Convention concerni ng Indigenous and Tribal Peoples i n Independent Countries (adopted 27June
1989, entered into force5September 1991), 1650 UNTS 383 (IL O Convention 169).
Alonso Gurmendi Dunkelberg
386 Intersentia
Nations Declaration on the Rig hts of Indigenous Peoples, adopted by the UN General
Assembly in 2007.18 While not binding a nd not without considerable criticism, the
Declaration is seen as a moder n restatement of the rights of indigenous peoples that
can have sig ni cant in uence in the future development of the law on indigenous
rights.
e Declaration states that indigenous peoples have a right to self-govern their
internal and local a airs19, maintain and strengt hen a distinct legal system20 and
the right not to be subjected to forced assimilation or destruction of their culture.21
ere is considerable debate in specialised literature as to how to make these rights
e ective22, especia lly in terms of their relation with other areas of huma n rights law.
is is precisely t he case with the framework of tort ure and other CIDTPs.
Indeed, indigenous populations ca n have a very di erent notion of crimi nal
sanction than Western23 scholars and criminologists. In ma ny cases, these sanctions
pursue quasi-rel igious and s ocietal purposes that di er at rst sig ht from the deterrence
and re-socialisation purposes that characterise modern criminal law.24 In the minds
of indigenous peoples, long-term incarceration serves no useful purpose, since it will
only mean that a hea lthy individual will be a bsent from her or his communal chores
and will not be able to help thei r village and family.
Because of these divergi ng notions of criminality, indigenous populat ions
sometimes may favour short but exemplary form s of punishment, like public
oggings, over long and discrete ones li ke imprisonment, especial ly on issues that
dis rupt socia l pe ace, like the and violent crime.25 Ot her b ehav iours lik e adul tery and
even gossiping can receive harsh lashi ng punishments as well.26
Pract ices that have been rep orted as e xamples of i ndigenous corporal punishme nt
are whipping with t horny branches, bei ng thrown chilling water at one’s body, being
put to the stocks, whipping, k neeling over pointy stones, performi ng military t ype
18 Declaration on t he Rights of Indigenous Peoples ,UNGA Res 61/295, UN Doc A/RE S/47/1, 46 ILM
1013 (200 7).
19 Ibid art 4.
20 Ibid art 5.
21 Ibid art 8.
22 Austin Badger, ‘Collecti ve v. Individual Human Ri ghts in Membership Govern ance for Indigenous
Peoples’ (2011) 26(2) Am U Int’ l L Rev 486.
23 roughout this ar ticle the term “Western” is used to desc ribe a particular u nderstanding of the
world which origina lly appeared in Western E urope and was later expor ted into other regions,
either full y or in syncretism w ith other local cu ltures. In this world view, legal analysis i s dominated
by the tradit ions of Common Law and Civil L aw, which nowadays dominate the lega l landscape of
the Americas.
24 Instituto de Defensa Legal, El Tratamiento de Con i ctos: Un Estudio de Actas en 133 Comuni dades
(Hans-Jürgen Brandt & Roc ío Franco Valdivia, eds , 2006).
25 Fernando García Serrano, Formas Indígenas de Ad ministrar justic ia: Estudios de Ca so de la
Nacionalidad Quichua Ecuatoriana (Flacso, 2002) 38 (quoting an indigenous leader from Ecuador
stating that a ccused of the are thankful to be ogged and t hat such a conduct is di er ent from
torture).
26 Ibid 35–36.
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Netherlands Q uarterly of Human Ri ghts, Vol. 33/4 (2015) 387
exercises, carr ying heavy stones and tying of t wo victims tightly together in order to
make them squeal.27 It shou ld be mentioned, however, that the practice of corporal
punishment among indigenous populat ions does not seem to be a prevalent practice.
A 2006 study of over 130 cases f rom Peru and Ecua dor showed that only 4.1 per cent
of surveyed cases ended w ith a sentence of corporal punishment.28
3. THE DEFINITION OF TORTURE AND CIDTPs UNDER
INTERNATIONAL HUMAN RIGHTS LAW
In order to determine whether and wh ich of the aforementioned practices can
be considered as tortuous or cruel, inhuman or degrading, it is important to rst
study the regulation of both of these concepts under international human r ights
law. e de nition of torture and CIDTPs, and the dist inction between the two,
can vary depending on which instrument is bei ng analysed and the interpretative
position one assu mes. e de nitions in the 1975 UN Declaration against Torture
(UNDAT),29 the 1984 UN Convention against Torture (U NCAT),30 the 1985 Inter-
American Convention to Prevent and Puni sh Torture (IACPPT),31 and the 1998
27 Instituto de Defensa L egal (n 24) 146–148.
28 Ibid 146.
29 Declaration on the Prote ction of All Persons from B eing Subjected to Torture and O ther Cruel,
Inhuman or Deg rading Treatment or Pun ishment, UNGA Res 3452 (X XX), UN Doc A/10034
(1975 ) ar t 91 (d e ning torture “any ac t by which severe pain or su ering, whethe r physical or
mental, is intentiona lly in icted by or at t he instigation of a public o cial on a person for such
purposes as o btaining from hi m or a third person infor mation or confession, puni shing him for an
act he has commit ted or is suspected of having c ommitted, or intimid ating him or other persons”
but not including “pai n or su ering arising only from, inherent in or incidental to, lawful sanctions
to the extent consis tent with the Standard Min imum Rules for the Treatment of Pr isoners”, and
sta tin g th at “[t] ort ure c ons tit utes an a ggr ava ted a nd d eli bera te fo rm o f cru el, inh uma n or d egr adi ng
treatment or punishment”).
30 UNCAT (n 1) (de ning torture as “any act by which severe pain or su ering, whether physical or
mental, is intentional ly in icted on a person for such pur poses as obtain ing from him or a thi rd
person informat ion or a confession, punis hing him for an ac t he or a third person has c ommitted or is
suspected of hav ing committed, or i ntimidating or coerc ing him or a third pers on, or for any reason
based on discrimination of any kind, when such pain or su ering is in icte d by or at the instigation
of or with the conse nt or acquiescence of a public o cia l or o the r per son a cti ng i n an o cial capacity”
but not including “pai n or su ering arising only from, inherent in or incidental to lawful sanctions”).
31 Inter-American C onvention to Prevent and Pun ish Torture, (adopted 9December 1985, entered into
force 28February 1987) 25 I LM 519 (IACPPT) (de ning tort ure as “any act intentiona lly performed
whereby physical or mental pain or su ering is in icted on a person for pu rposes of crim inal
investigation, a s a means of intimidation, as person al punishment, as a preventive measu re, as a
penalty, or for any other pu rpose. Torture shall al so be understood to be the use of me thods upon
a person intended to obliterate the personality of the victim or to diminish his physical or mental
capacities, e ven if they do not cause physic al pain or mental a nguish” but not includ ing “physical or
mental pain or su ering that is inhere nt in or solely the consequence of lawf ul measures, provide d
that they do not includ e the performance of t he acts or use of the method s referred to in this
article”).
Alonso Gurmendi Dunkelberg
388 Intersentia
Rome Statute32 vary.33 In this sense, while the UN de nition requires severe pa in or
su ering intentionally in icted by a public o cial for a speci c ally banned purpose,
the Inter-American de nition omits any mention of severity, and merely focuses on
pain in icted for a speci cally banned purpose. A lso, the interpretations of these
texts by di erent legal operators varies. Indeed, UN bodies and regional huma n
rights tribuna ls (speci cally t he European Court of Human Rights (ECtH R) and the
Inter-American Court of Human R ights (IACtHR)) seem to understand torture and
CIDTPs di erently.
For instance, to the U N Special Rapporteur on Torture, both tort ure and cruel and
inhuman treatment require the in iction of severe pain or su ering,34 whereas acts
where pain is not severe enough may nevertheless const itute degrading treatment.35
In this way, the di erence between torture and cruel and in human treatment lies
in the purpose for which it is in icted, rather than the severity of its pain.36 is
understanding di ers from those of both t he ECtHR and the IACtHR.
At the ECtHR level, the 1978 landma rk case of Ireland v. United Kingdom decided
that wall stand ing, hooding, subjection to noise, deprivation of sleep, and deprivation
of food and drink did not const itute acts of torture, but rather inhuma n and degrading
treatment. is wa s because “they did not occasion su ering of the particu lar intensity
and cruelty implied by t he word torture.”37 In this sense, torture would be distinct
from CIDTPs because of the level of pa in in ic ted, and not based on the purpose for
which it is committed. Pain in icted as punishment that is of less severity than that
required by the Cour t would be considered cruel and inhuman, but not tortuous.
is u nderstanding by the ECtHR is also di erent from the approach of the
IACtHR, which is perhaps the most cumbersome to grasp. e IACtHR seems to
be in agreement with t he ECtHR in that there is some element of gradat ion in the
di erence between torture and CIDTPs.38 At the same time , however, both the text
32 Rome Statute of the Internat ional Criminal Cou rt, (adopted 17July 1998, entered into force 1July
2002) 2187 UNTS 90 (de ning tort ure as “the intentional i n iction of severe pain or su eri ng,
whether physica l or mental, upon a person in t he custody or under t he control of the accus ed; except
that torture sh all not include pain or s u ering arising only from, inherent in or incidental to, lawful
sanctions”).
33 Nigel S Rodley, ‘ e De nit ion(s) of Tortu re in International L aw’ (2002) 55 Current Legal Probl ems
467.
34 UN Special Rapporteu r on Torture Report (n 11) para 35.
35 Ibid para 32.
36 Ibid para 188.
37 Ireland v. United Kingdom App no 5310/71 (ECtHR 1976) para 167. It should be noted though that
the torture t hreshold has since been signi cantly lowered by t he ECtHR and that such practice s
would now de nitely fall within the notion of torture. See Selmouni v. France App no 25803/94
(ECtHR,28July 1999) para 10 (holding that “certain acts which were classi ed in the past as
‘inhuma n and degrading t reatment’ as opposed to ‘tor ture’ could be classi ed di erently in the
future’”).
38 Case of Loayza Tamayo v. Peru (Merits Judgment) Inter-American Cou rt of Human Rights Serie s
C No 33 (17September 1997) par a 57 (holding that “[t]he violation of the ri ght to physical and
psychological i ntegrity of person s is a category of violat ion that has severa l gradations a nd embraces
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Netherlands Q uarterly of Human Ri ghts, Vol. 33/4 (2015) 389
of the IACPPT and the Court’s landma rk cases on torture seem to place lit tle to
no importance on the severity of pain. Indeed, the text of the IACPPT speci cally
excludes the word “severe” from its de nition of torture; and furthermore, it even
states that no physical pain or mental anguish i s needed for a nding of torture i f the
act is in icted through methods intended to “obliterate the personalit y of the victim
or to diminish hi s physical or mental capacities.”39
With this backg round, the notion of severity of pain and the dist inction between
torture and CIDTPs has sometimes been notoriously absent from IACtHR cas e
law. In Cantoral Benavides v. Peru the Court held that at least some of the fol lowing
acts amounted to tort ure: blindfolding, cu ng of hands, being forced to remain
standing, bei ng struck in several pa rts of the body, being forced to hear the cries of
a family member, being held at the veterinary section of a military base, and being
threatened w ith torture.40 e Court reached this conclusion by determining that
the acts were planned and in icted deliberately for at least two banned purposes
(extracting a confession and punishing the victim), without making a clear analysis
as to the severity of the pain in icted or why these acts could be considered torture
and not CIDTPs.41 Indeed, basing itself on the ECtHR’s case law, the IACtHR
speci cally mentioned that whatever the legal nature of the acts , both torture and
CIDTPs are conduct strict ly prohibited by human rights law and subject to an
absolute prohibition.42 e Court then concluded that “at least some of the acts of
aggression examined” constituted torture.43 e Court did not analyse wh ich of
them were tortuous and which were CID, nor did it seem to place much i mporta nce
on the merits of the di erentiation.
In turn, in Loayza Tamayo v. Peru, the IACtHR found that incom municado
detention, exhibition to the media wea ring degrading garments, sol itary con nement
with no natura l light, blows and maltreatment includi ng immersion in water,
intimidation wit h threats of further violence and a restrict ive visiting schedule
only constituted cruel, inhuman or degrading treatment. e Court did not analyse
whether they could a lso be characterized as tortuous or what exactly marks the
di erence bet ween both concepts.44
In fact, even when the Cour t has speci cally mentioned severity of pain as
a requirement for a nding of torture, its subsequent analysis has been unclear as
to what importance t his requirement has or its role in disti nguishing torture from
treatment rang ing from torture to ot her types of humi liation or cruel, in human or degradin g
treatment”).
39 IACPPT (n 31) art 2 . See also Rodley (n 33) 14–16.
40 Case of Cantoral Benavides (Merits Judgment) Inter-American Cou rt of Human Right s Series C No
88 (18August 2000) para 104 .
41 Ibid.
42 Ibid para 95.
43 Ibid para 104.
44 Loayza Tamayo v. Peru (n 38) para 58.
Alonso Gurmendi Dunkelberg
390 Intersentia
CIDTPs.45 As such, in the 2007 case of Bueno-Alves v. Argentina,46 the IACtHR
expressly mentioned that a determination of torture required an intentional act
that causes “severe pain or su ering.”47 When analysing this requi rement, however,
the Court did not o er a purely objective standard, but rather speci cally referred
to “subjective factors” as well.48 For the Court, therefore, objective factors require it
to determine the “character istics of mistreatment, such as duration, the method or
manner used to in ict harm, and the physical and psychologica l e ects such harm
may cause.”49 Subjective factors, in turn, require an analysis of “the characteristics of
the individua l undergoing mistreatment, including age, gender, healt h condition, and
any other personal circumstance.”50 In the end, such a standa rd means that a mild
degree of pain in icted on a child for a long period of t ime could be more tortuous
than a harsher level of pain i n icted upon a trai ned member of the armed forces of a
State for only a few seconds.
Given its scope and the realit ies of indigenous corporal punishment – a practice
prevalent in Latin American indigenous communities – t his article wi ll focus on
the IACtHR understand ing of torture and CIDTPs. is will have considerable
consequences for the overall lega l evaluation of corporal punish ment and any possible
solutions o ered. Indeed, scholars generally accept t hat a determination of torture,
as opposed to the determinat ion of CIDTPs, has very relevant and diverging lega l
consequences.
As stated by the UN Rappor teur on Torture, torture as a crime has a “specia l
position in international law”.51 Indeed, not only i s the prohibition on torture absolute,
in the sense that it ca nnot be “balanced aga inst any other right or concern”52, it is als o
non-derogable in times of emergency.53 As such, the UNCAT mandates all member
States to “ensure that all ac ts of torture are o enc es under its criminal law”54 even in
cases of mere complicity or conspiracy. States also have an obligation to make these
o ences punishable by “sentences commensurate with the gr avity of the crime”55
and ensure the application of the principle of aut dedere aut judicare over any
45 Speci cally in t his case, the respond ent State agreed to the cla ssi cation of the acts as torture
undertak en by the Inter-American Com mission.
46 Case of Bueno -Alves v. Argen tina (Merits, Repa rations, and Costs Jud gment) Inter-American Cour t
of Human Right s Series C No 164 (11May 2007).
47 Ibid para 71. It should be noted, however, that, as stated by Rodley, before this case, the Court
seemed more incline d to obviate the mention of severit y of pain altogether. Se e Rodley (n 33).
48 Bueno-Alves v. Argentina (n 46) para 83.
49 Ibid para 83.
50 Ibid.
51 UN Special R apporteur on Torture Report (n 11) para 40.
52 Ibid para 41.
53 Ibid para 42.
54 UNCAT (n 1) art 4.
55 UN Special Rappor teur on Torture Report (n 11) para 49.
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torturer found within its territory.56 Lastly, under Articles10 to 13 of the UNCAT,
States must undertake to educate their law enforcement agencies on the content of
the Convention, periodical ly review interrogation rules, invest igate all instances of
torture and ensure proper acces s to justice to any individual al leging the commission
of torture .57
On the other hand, the applicable regime for CIDTPs is less stringent. Ar ticle16
of the UNCAT extends to CIDTPs only an obl igation on States to prevent their
commission and the obligat ions under Articles 10 to 13 of the UNCAT, which, as
mentioned above, are mostly restric ted to training and access to jus tice.58 is means
that there is no application of the aut dedere aut judicare principle for CIDTPs, nor
is there an obligation to criminalise every single instance of CIDTPs in domestic
law. e absoluteness of their prohibition could also be called into question, which
in turn me ans that the option of b alancing CIDTPs with other right s such as cultura l
integrity could be per missible in theory. On this last issue, however, as stated above,
the IACtHR seems to consider both CIDT Ps and torture as absolutely banned, so it
remains unclear as to how the C ourt could proceed in this regard.59
is is perhaps the most serious cha llenge facing indigenous corporal pu nishment
in the Inter-American System. e IACtHR’s general lack of clarity on the issue of
di erenti ating torture from CIDTPs presents itself a s a major problem for the analysis
of indigenous corporal punishment. Indeed, as mentioned below, any governmental
response to the problem will necessarily need to ascer tain whether instances of
corporal punish ment are CIDTP or torture. For the moment, and in order to beg in
the analysis, determinations of corporal punishment will be based on the IACtHR’s
case law, drawing dist inctions between torture and CIDTP w here possible, and using
the views of the UN Torture Rappor teur and the ECtHR as guidelines for further
clari cation when needed.
4. CORPORAL PUNISHMENT UNDER INTERNATIONAL
HUMAN RIGHTS LAW
Treaty law provides hardly any clarity with regard to corporal punishment and its
place within the i nternational human rights legal system. e Internat ional Covenant
on Civil and Political R ights does not speci cally mention it or clearly include it in its
prohibition of torture and CIDTPs.60 It is rather in reports by various treaty bodies
56 Ibid para 134; UNCAT (n 1) art 7.
57 UNCAT (n 1) art 10–13.
58 Ibid.
59 Cantoral Benavide s v. Peru (n 40) para 95.
60 International Covenant on Civ il and Political R ights (adopted 16December 1966, entered i nto force
23March 1976) 999 UNTS 171 (ICCPR).
Alonso Gurmendi Dunkelberg
392 Intersentia
and UN special procedures that the illegality of corporal punishment in general can
be thoroughly gras ped.61
For example, the UN Specia l Rapporteur on Torture has speci c ally stated
that “without exception, corpora l punishment has a degrading a nd humiliating
com pone nt” and t hat “al l fo rms of co rpo ral pun ish ment mus t th eref ore, be c onsi dere d
as amounting to cruel, inhuman or degrading punishment in violation of international
treaty and customa ry law”.62 For its part, a nd in the context of corporal punishment
against child ren, the Committee on the Rig hts of the Child has stated that such a
practice “direc tly con ic ts with the equal and ina lienable rights of children to respect
for their human dignit y and physical integrity”.63 Likewise, international human
rights courts have decided ca ses against the practice of corpora l punishment, either in
the case of child ren or judicial sentencing. is has been the case for bot h the IACtHR
and the ECtHR.
In Caesar v. Trinidad and Tobago,
64 a case involving the ogging of a man
as a consequence of a criminal conviction for rape, the IACtHR rmly stated its
opposition to the practice. It stressed the “growing trend towards recognition,
at international and domestic levels, of the impermissible charac ter of corporal
punishment, with rega rd to its inherently cruel, inhuman a nd degrading nature”,65
and clearly defended the universal prohibition of torture in the context of corp oral
punishment.66
For the IACtHR, the fact t hat the og ging was regulated by law and admin istrated
by prison authorities made no di erence to the tor tuous nature of the practice.67 e
Court stated that “corpora l punishment by ogg ing constitutes a form of torture and,
therefore, is a violation per se of the rig ht of any person submitted to such punishment
to have his physical, mental and moral integrity respected.”68 Moreover, and in a
particula rly striking breach of protocol, the C ourt expressed its “profound regret” that
a judge would have decided to condemn an individual to a prac tice “that is not merely
in blatant violation of the State’s internationa l obligations under the Convention, but
also is universa lly stigmatized as cruel, inhu man, and degrading.”69
61 See UN Specia l Rapporteur on Torture Rep ort (n 11) para 209 and UN Committe e on the Rights of
62 UN Special Rappor teur on Torture Report (n 11) para 209.
63 CRC GC8 (n 61) para 21.
64 Case of Caesar v. Trinidad and Tobago (Merits, R eparations and Costs Judgme nt) Inter-Americ an
Court of Huma n Rights Series C No 123 (11March 200 5).
65 Ibid para 70.
66 Ibid.
67 Ibid para73.
68 Ibid.
69 Ibid para 74. As noted above, the Court referred to corporal punishment both as a form of torture
and as a form of CIDTP, wit hout making much e ort to distingu ish one another, and, as will be
menti oned be low, thi s wil l have i mport ant co nseque nces fo r the a naly sis of co rpora l pun ishme nt in
the Inter-America n Human Rights Syst em.
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For its part, the Europea n Court dealt with cor poral punishment in Tyrer v. United
Kingdom, a case involvi ng the striking of a 15 year old wit h a birch.70 e ECtHR d id
not nd t he bi rc hi n g o f s u cient intensity to qual ify under the Europe an human rights
system as either tortuous or i nhuman, but it did conclude that it was de grading.71 For
the Court, t he fact that the punishment had been in icted by a policema n meant that
this was a case of i nstitutionalised violence permitted by law that treated the victim
as an object in the power of the aut horities, and therefore was an assault to hi s dignity
and physical integrity.72
erefore, it is clear that u nder both the Inter-American and European Huma n
Rights Systems, corporal punishment – even if prescribed by law – is contrary to
international human rights standards. Moreover, in the Inter-American System, it is
also a particularly heinous practice that is speci cally and actively discouraged by
the Court. Never has either of these Courts found any insta nce of judicial corporal
punishment to be excusable as a form of law fully imposed sanct ion.
However, while the ECtHR and the UN Spe cial Rapporteur on Torture have
speci cally referred to corporal punishment as a form of CIDTP, the IACtHR – in
a not uncharacteristic ma nner – seems to have con ated corporal punishment both
as a CIDTP and a tortuous ac t. is was clear in the Caesar v. Trinidad case, where
it stated corporal punishments as CIDTP in the abstract, but speci cally considered
thi s case of ogging as a form of torture, given “t he aggravating circumst ances which
arose in the in iction of Mr. Caesar’s punishment” and “the deg ree of intensity of
physical and mental pain su ered by him”.73 For purposes of this article, and in
keeping with the cr iteria set out by the IACtHR, this mea ns that instances of corpora l
punishment generally constitute CIDTPs and that they could be considered tortuous
provided the existence of agg ravating circumsta nces – including severity of pai n –
is proven. is also means that, consistent with the text of the IACPPT, corporal
punishment cannot fall within the exception of “lawful sanction”, as will be seen in
greater detail below.74
5. CORPORAL PUNISHMENT IN THE CONTEXT OF
INDIGENOUS RIGHTS
As described in the prev ious sections, international human rights law, and especial ly
the Inter-American Human Rights System, have a very acute aversion to acts of
torture/CIDTPs and corpora l punishment. At the same t ime, however, modern human
rights law is particularly concerned with protecti ng and empowering indigenous
70 Tyrer v. United Kingdom, App no 5856/72 (ECtHR 25Apri l 1978).
71 Ibid para 33.
72 Ibid.
73 Caesar v. Trinidad & Tobago (n 64) para 87.
74 UN Specia l Rapporteur on Torture Repor t (n 11) para 213.
Alonso Gurmendi Dunkelberg
394 Intersentia
communities. In so doing, some scholars have come forth in favour of a nuanced,
less stringent understa nding of the prohibition of torture and CIDTPs i n the case
of indigenous cor poral puni shment.75 According to this v iew, indigenous corporal
punishments should be seen either as a component of the rig ht to cultural integrit y, or
should be considered to lay outside the regime applicable to tort ure and CIDTPs given
the particu lar circumstances i n which they are enforced. In this view, human rights
law should, at the least, remain indi erent to indigenous corporal punishment and,
at the most, see indigenous corpora l punishments as a manifestation of the right to
cultural integrity. In this section of the article, both claims will be disputed, arguing
that any relat ivisation or rei nterpretation of ind igenous corpora l punishment t hat
places it at a privileged or di erentiated position with regards to other banned forms
of corporal punishment would constitute a dangerous threat to the integrity of the
human rights regime i n general, and a step backwards in the protect ion of indigenous
rights that charac terises modern international law.
5.1. INDIGENOUS CORPORAL PUN ISHMENT AND THE DANGERS
OF REL ATIV ISM
One of the main argu ments in favour of accepting indigenous corporal punishment
as legitimate forms of penal sa nction is that – when looked at with an open mind – in
reality they a re not that di erent from other supposedly more “civil ized” forms of
criminal pu nishment, like the death pena lty and imprisonment. Indeed, both of the se
latter punishments would cause sig ni cant levels of pain and su ering to individuals
yet “we are willi ng to accept that because it is our way to punish.”76 According to such
a view, the fact that tortu re conventions (including the IACPPT) exclude from the
de nition of torture “lawfu l measures” such as imprisonment even when t hey cause
physica l or mental pa in, is litt le more than a “disgu ise” design ed to hide a cont inuous
system of violence under a false g uise of humanitaria nism.77 As such, alternative
ways of punishing should be gra nted legal recognition in such insta nces where they
are cultura lly accepted and contextually less damaging to the a ected individual as
compared to imprisonment or other Western ways of punishing.78
is line of argument , however, su ers from a series of shortcom ings. First ly, it
wrongly assumes t hat the Western way of punishing came about pri marily due to
some sort of inherent European humanitarian impulse that would be culturally
insensitive to other idiosy ncrasies. Secondly, it ignores that a pluralistic approach
to torture would rather place ind igenous populations at a disadvantage wit h regard
to other vulnerable groups. irdly, it risks u ndermining the unit y and absolute
75 See Anaya (n 3).
76 Ruiz-Chiriboga (n 9) 1002.
77 Ibid 1001.
78 Ibid.
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character of the tort ure regime, to the prejudice of all indiv iduals, indigenous or not.
Each of these issues are dea lt with separately below.
5.1.1. e Evolution of the ‘Western Way’ and the Lawful Sanctions
Argument
Two main ways of punishing are used as examples of Western practices wh ich, like
indigenous corporal puni shment, cause severe pain and su eri ng and are yet tolerated
by Western culture as “law ful sanctions” not amounting to torture: imprisonment
and the death penalt y. Given the death penalty’s current status with in the Western
world, where fewer and fewer States decide to actual ly regulate or enforce it,79 this
article concentrates pri marily on imprisonment.
Arguments that compare imprisonment and indigenous corporal punishment
when discussing accepted State sanctioned penal punish ments argue that the West
is willi ng to accept the pain and su ering that accompanies long-term imprisonment
because that is the way the West deals with crimina lity.80 However, if one were to
consider Ancient Greece as the star ting point of Western thought, and then analyses
where imprisonment became an accepted form of penal punishment, one would
have to conclude that imprisonment was not precisely a particularly Western way of
punishing until the late 17th century and that, even then, the introduc tion of actual
prisons in Europe did not imply the end of corp oral punishment.81
In fact, the concept of imprisonment simply did not exist throughout most of
the European Midd le Ages, where “death and maiming , were the ordinary penalties
for serious crime.”82 Indeed, the only instances where an individua l’s liberty was
restricted in t he course of the administration of justice wa s through the concept of
jailing, where debtors and pers ons expecting trial wou ld be held for short periods of
time.83 e r st prisons, under stood as places were d elinquents or devi ants are sent
for chastisement or correction for prolonged periods of time, did not appear unti l
the late 16th century i n England and the early 17th century in t he Netherlands.84 It
would take even longer for the concept to take hold in ot her parts of Europe and,
even then, their original purpose was not intended as a replacement of corporal
punishment for humanitaria n reasons. Rather, prisons were created under the
79 Amnesty Internat ional, Death Sentenc es and Executions 2 013 (2014) 5
research/reports/death-sentences-and-executions-2013> accessed 1September 2015 (claiming that
in 2013 there had been recorded executions in only 22 countries, with most executions worldwide
coming from only C hina, Iran, Iraq a nd Saudi Arabia).
80 Ruiz-Chiriboga (n 9) 1002.
81 John H Langbei n, ‘ e Historical Origins of t he Sanction of Impri sonment for Serious Crime’
(1976) 5 J Legal Stud 35, 36.
82 Ibid 36.
83 Pieter Spierenburg, ‘From Amsterd am to Auburn: An Expl anation for the Rise of t he Prison in
Seventeenth-C entury Holland a nd Nineteenth-C entury Americ a’ (1987) 20(3) J of Soc Hist 439, 440.
84 Ibid 440.
Alonso Gurmendi Dunkelberg
396 Intersentia
banner of “houses of correction” aimed at combating the problems of beggar y and
vagrancy.85 Criminal prisons would not see t he light of day until the 18th century,86
that is almost 2200 years a er the golden period of Athenian Western society,
and even then, corporal pu nishment continued to exist throughout a prison lled
Europe.87
u s, the idea that Western values were somehow di erent from those of any
other human societ y at the time European thin kers began to promote the application
of humanitarian principles for its prison population (or any other area of human
development, for that matter), bellows ethnocentrism. Western nations were as
comfortable with corporal punishment as any other a nd humanitarianism was not
a natural development for Western culture, but rather a concerted e ort on the part
of a few to impose a di erent mind set on a less agreeable majority. is can clearly
be seen in the way British colonies adamantly resisted the ab olition of corporal
punishment even against considerable pressure from London. For example, in the
African colony of Natal, British colonial authorities tr ied to deny white colonists t he
right to og their black ser vants for minor o ences tw ice, rst in 1876 and later in
1883, both times facing considerable back lash from local colonial councils and to no
avail.88 In fact, instances of corpora l punishment against white colonists have been
recorded until as late as 1933.89 Moreover, even when public corporal punishment
was banned, corpora l punishment remained on the penal codes and prison manuals
of several Western countries (such as Canad a,90 the United States91 and the United
Kingdom92) to be applied behind closed doors well i nto the 20th century. In many
85 Ibid 441.
86 Ibid 442.
87 Ibid 448 (claiming t hat “[a]lthough con nement played a consider able role in the penal system of
the Dutch metropol is, it should not be forgotten that public exec utions and corporal punis hment
existed alon gside it” and that “[i]t was only towards t he end of the eighteenth ce ntury that a
heightened sensiti vity with regard to t he sight of the sca old bec ame manifest” ).
88 Stephen Peté and Annie Devenis h, ‘Flogging, Fear a nd Food: Punishment a nd Race in Colonial
Natal’ (2005) 31(1) Journal of Southern Af rican Studies 3, 5 –6 (citing local counc ilmembers as
stating that i mprisonment for black “ka r” populations “was no pun ishment to them”).
89 Ibid 5–6 (while the pun ishment was resisted by Brit ish authorities becau se of the black Afric an
origin of the ogger, the particu larly cruel nat ure of the punish ment was not subject to quest ioning).
90 ‘Report of the Canadia n Committee on Corrections’ (31Ma rch 1969) 207
media/(1969)%20HV%208395%20A6%20C33%201969%20(Ouimet).pdf> accessed 1 September
2015 (stating – in 1969 – that “corporal punishment may lawfully be included as part of a sentence
imposed by a Cana dian Court”).
91 M a r y l a n d H i s t o r i c a l S o c i e t y , ‘ O n l y I n s t r u m e n t o f t h e L a w : B a l t i m o r e ’s W h i p p i n g P o s t ’ (3 O c t o b e r 2 0 1 3 )
post/> accessed 1September 2015 (stating that laws on ogging a nd similar forms of cor poral
punishment remai ned legal in Delaware u ntil 1972 and Maryla nd until 1953).
92 Tyrer v. United Kingdom (n 70) (holdi ng the United Kingdom respon sible for in icting cor poral
punishment as a pen al sanction on a minor).
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instances, corporal punishment on children still remains legal even today.93 Actual
concerted e orts to ab solutely prevent corporal pun ishment and other CIDTPs in all
instances and situ ations did not occur until the human rig hts movement of the mid-
20th century took hold.
Based on these facts , it is more likely to say that the ban on tortu re and CIDTPs
has been as much an imposition on t he Western world as it may be on the ind igenous
world. It was an imposition of human values a nd reason over cultural concerns ,
and that is a theme that u nderscores the entire body of modern human rig hts law,
including the right of sel f-determinat ion and cultural integrity. Imprisonment is not
a Western way of punishing and even less so because it is a les s bloody, more humane
way of punishing. It is rather a way of punishi ng that gained traction only recently in
the West and not out of a particularly Western way of understanding the world but
rather out of ideas of the universality of human dignity and huma n rights; hardly
ideas the West can claim sole authorship of.
is means, therefore, that imprisonment is not considered a “lawf ul sanction”
and an exception to the tor ture and CIDTP legal regime bec ause of a “monistic vision
of punishment ”,94 but rather because it comports to those standard minimum rules
that the world has agreed to respec t regardless of cultural diversit y.95
5.1.2. Relativisation of Corporal Punishment as Prejudicial to Indigenou s
People s’ Rig hts
Other than its sha ky historical roots, the argument that ind igenous corporal
punishment should be understood in its ow n cultural context and granted “lawfu l
sanction” status has a ver y concrete negative consequence that is s eldom explored by
proponents. Indeed, a culture-based u nderstanding of corporal puni shment would go
way beyond the subjective factors st ated by the IACtHR in the Bueno-Alvez case, and
rather constitute a complete relativis ation of the concept of torture that would work
against the ver y indigenous populations it seeks to protect and empower.96
Certainly, the fact that the victim is a member of an indigenous community is a
signi cant subjective factor to analyse in any de nition of torture or CIDTPs, but
the problem here is that the interpretation that defenders of indigenous corporal
punishment propose would end up subjecting ind igenous individuals to a more
permissive torture standard when compared to other vu lnerable groups. In fact,
93 Parliament of Canada, ‘ e ‘Spa nking ’ Law: Sect ion 43 of the Cri minal C ode’ (20June 2008), available
at: l.gc.ca/content/lop/resea rchpublications/prb0510-e.pd f> accessed 1 September 2015
(statin g that “S ection 43 of the Cri minal C ode [of Can ada] is cont roversia l in that it express ly o ers
parents and teache rs a defence when they use reas onable force to discipline a ch ild”).
94 Ruiz-Chiriboga (n 9) 1002.
95 UN Special Rappor teur on Torture Report (n 11) para 213.
96 Ruiz-Chiriboga (n 9) 1003 (stating t hat he is not proposing a relativisat ion of torture but that “we
must ask rst who considers such acts a s amounting to tortu re”).
Alonso Gurmendi Dunkelberg
398 Intersentia
on previous occasions, the IACtHR ha s stated the American Convention should be
interpreted in the manner most favourable to the individual, that is, as a person and
not the particu lar cultural sett ing she or he belongs to.97
A similar argument was used for example to justify corporal punish ment against
children, claiming that some level of “reasonable” or “moderate” corporal punishment
can be justi ed as b eing in the “best i nterest of the child”.
98
e Comm ittee on the Rights
of t he Ch i l d, ho w ev er , d i sa g re e d , c l ai m i ng t ha t t h e i n te r pr e ta t io n o f a c h il d ’s be s t i n te re s ts
has to conform to the general human r ights standards set forth in conventional human
rights law, including the obligation to protect ch ildren from all forms of violence.
99
e
notion of “best interests of the child” therefore, could not be used to place a child in
a situation where their human dignity and physical integrit y would be jeopardised.
100
ere is no reason to assume that cultural integrity and indigenous rights should work
in a di erent manner than the notion of the best interest of the child. ese concepts,
while important, cannot be used to place a member of an indigenous community in
a situation where their human dig nity and physical integrit y is jeopardised. To the
contrary, international human ri ghts law should seek to o er higher protections to those
individuals who have been hi storically disempowered and ostracised by the St ate.
Indeed, all t he subjective factors listed by the IACtHR in Bueno-Alves work this
way. ey o er greater protection to individuals who a re in less favourable situations:
a child can endure less pai n than an adult and so the t hreshold should be lower; the
risk of sexual v iolence tends to be greater for women than men, so the threshold for
psychological angu ish caused by the threat of sexual v iolence could be set d i erently
for men than for women; persons with di seases su er f rom pains and conditions that
healthy indiv iduals do not, abuse of such conditions should be ta ken into consideration.
All of these subject ive factors tend to place the threshold at a lower level than what
woul d be ex pec ted of an ave rage i ndiv idua l, who could , in t heor y at le ast, resis t hig her
levels of pain. It is only in the case of indigenous individuals that t heir particular
subjective circumsta nces could be used to drive the th reshold upwards; to make
conduct that would count as tortu re or CIDTP in most c ircumstances, not illegal for
members of indigenous communities. is seems , to say the least, unfair, and would
be in direct contrad iction to modern i nternational law, which, on the contra ry, aims
at empowering the members of indigenous communit ies by guaranteeing them equal
rights and freedom from d iscrimination.101
97 Compulsory Membership i n an Associat ion Prescribed by Law for t he Practice of Jou rnalism (arts 13
and 29 America n Convention on Human Rig hts) Advisory Opin ion OC-5/85, Inter-American Cou rt
of Human Rig hts Series A No 05 (13November 1985) para 52 (stati ng that when a treaty c ontradicts
the p rovi sion s of t he Am eric an C onve ntion “th e rul e mos t favo rabl e to t he in div idua l mus t pre vai l”).
98 CRC GC8 (n 61) para 26.
99 Ibid.
100 Ibid.
101 Anaya (n 3) 19 (citing favourably CERD General Recommendation on Indigenous Peoples when it
says states must “ensur e that members of indigenou s peoples are free and equ al in dignit y and rights
and free from any d iscriminati on, in particula r that based on indigenou s origin or identity”).
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Netherlands Q uarterly of Human Ri ghts, Vol. 33/4 (2015) 399
Belonging to an indigenous commun ity could be used as a subjective factor in
the sense that it could bea r upon the examination of the intention of the a lleged
torturer. In keeping with t he IACtHR’s handling of t he Caesar case, t his could cause
a determination of CIDTP inste ad of torture, which in turn could be dea lt with from
a gradation of penalty approach, a nd not as evidence of innocence.
5.1.3. Relativisation of Corporal Punishment as the De struction of the Torture
Regime
If defenders of indigenous corporal punish ment are right and the determination of
tortuous or cruel, inhuma n or degrading practices is at least partly cultur al, then
the entire torture/CIDTP reg ime would face a very dire risk of complete collapse.
Indeed, according to this understanding, not only would non-contacted indigenous
populations be allowed an u nrestricted approach to torture a nd CIDTPs, regardless
of how cruel and inhuman, given t heir right to develop on their own terms, but also
practices that are speci cally discouraged by international human rights law, such
as female genital mutilation, would suddenly become acceptable to international
law in such places were local culture would so favour them.102 is is not how
international human rig hts law is supposed to work. In fact, at least from a purely
legal understandi ng, human rights are deemed to be “universal, indivisible and
interdependent and interrelated.”103 is means that the defence of one human right
cannot be the undoing of a nother. Torture and CIDTPs a re subject to a special regime
under international law precisely because t hey are so inimical to human nature as a
whole, and no limitations whats oever should be permitted to this regime .104
is is of course not to say that human rights law is il l-disposed aga inst cultural
di erences. Self-determination and cu ltural integrit y are two paramount pilla rs of
modern international law. But just as any other r ight, self-determination and cultu ral
integrity are not outside the genera l human rights legal fra mework of today, which
is not based on moral concerns over cultural relativism, but on legal rules and legal
interpretation that remain equa l to all those who are subject to thei r provisions. If
humans retain t he ability of opting out of human rights for cultura l reasons, then the
whole system would collapse.
102 On the e orts by the internationa l community to eradic ate female genital muti lation see Edith
M Lederer, ‘United Nations Ca lls for Global Ban on Fema le Genital Mutilation’ Hu ngton Post
(New York, 26 November 2012) ngtonpost.com/2012/11/27/un-committee-calls-for-
ba_0_n _2198244.html> acc essed 1September 2015.
103 Vienna Dec laration and Program of Ac tion, Adopted by the World Conference on Human Ri ghts
in Vienna (25 June 1993) para 5 ssionalinterest/pa ges/vienna.aspx >
accessed 1Sept ember 2015.
104 U N Sp e ci al Ra pp or te ur on Tor tu re Re po rt (n 11 ) pa r a 41 (st at i ng th at “[t] or tu re mu st no t b e ba l an ce d
against nat ional security inte rests or even the protection of ot her human rights. No li mitations are
permitted on t he prohibition of torture”).
Alonso Gurmendi Dunkelberg
400 Intersentia
5.2. INDIGENOUS CORPORAL PUN ISHMENT AND THE DANGERS
OF BENEVOLENT REINTERPRETATION
Not all defenders of indigenous corporal pu nishment claim, however, that torture and
CIDTPs should be relativised depend ing on the culture of the tor turer. Another avenue
that has been explored is trying to interpret speci c punishments as not complying
with the legal de nition of torture and CIDTPs as expressed in human rights law.
is, for example, has been the case of t he Colombian Constitutional Cour t, which,
while working wit hin the concept of universalit y of human rights, has stated that
arguably tortuous or cruel practices fail to meet the standard for either tortu re or
CIDTPs.105 According to this approach, a pract ice like “ fuete,” where the vict im is
og ged on the leg with a riding crop, does not constitute tort ure or CIDTP because it
does not reach the level of pain requi red for tortu re and because it is not in icted for
any banned purpose, but is i ntended as a puri cation process.106
However, the notion that indigenous corporal punishment does not constitute
torture or CIDTPs because it is not in icted as a punishment but as some other kind
of puri cation ritual or as a way to integrate the individual back to the community
is clearly awed. e very fact that an individual requires puri cation or reinsertion
in the community i mplies that she or he has done something w rong that warrants
correction through a speci c sanction. Whether the sanction is meant to purify the
soul or cause detri ment or reconciliation is i rrelevant. Take for example the Catholic
notion of an act of contrition. Acts of contrit ion are also meant to purif y the soul
and deter sin. Whether t he speci c act of contrition constitutes torture or CIDTP,
however, depends on whether it is humiliating or pai nful, not on whether it can also
be seen as a means for reconcil iation or puri cation. A sanction of praying t hree
“Hail Marys” wou ld be permissible; a sanction of ogging, would not, regardless
of whichever secondary i ntention the punishment was in icted for; punishment
for puri cation is as much a punishment as punishment for revenge. Claiming that
punishment for puri cation of the sou l is not a punishment altogether simply misses
the concept of punishment completely and, even if somehow one could actu ally make
105 Judgment T-349/96 (n 7); Judgment T-523/97 (n 14).
106 Judgment T-523/97 (n 14) Section 3.3.3.a) (claiming t hat “el sufrimiento que e sta pena podría c ausar
al actor no revis te los niveles de gravedad requeridos par a que pueda considerarse como tortura ,
pues el daño corpor al que se produce es míni mo” (translation: “the su ering that this penalty
can cause to t he actor does not comport the le vels of seriousness requi red for it to be deemed
torture, given that the corporal damage that is produced is minimal”) and that “[t]ampoco podría
considerarse como u na pena degradante que humil le al individuo grosera mente delante de otro o
en su mismo fuero inte rno, porque de acuerdo con los elementos de l caso, esta es una pr áctica que se
utiliza nor malmente entre los paeces y c uyo n no es exponer al ind ividuo al ‘escarmiento’ públ ico,
sino buscar que rec upere su lugar en la comunidad ” (transl ation: “one can neither consider it a
degrading p enalty that gravely hum iliates the indiv idual in front of another or in hi s own interior
world , bec ause acco rdin g to th e elem ents o f the case , th is is a prac tice that is com monl y use d amon g
the paeces and which purpos e is not to expose the individu al to public ‘shaming’ but to tr y to get
him to regain h is place in the communit y”)).
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Netherlands Q uarterly of Human Ri ghts, Vol. 33/4 (2015) 401
this claim, t he act may very well still constitute degr ading treatment. ere is, simply
put, no escaping this sta ndard.
6. INDIGENOUS CORPORAL PUNISHMENT: THE WAY
FORWARD
is article has so far determined t hat culture is not a valid except ion for allowing
lenience in the judging of indigenous corporal punishments and t hat corporal
punishments in general are contrary to international human r ights law, generally as
a CIDTP, but possibly also as a form of torture. is, however, presents a dilemma:
it is only a matter of time before cases relating to indigenous corporal punishments
come before the IACtHR. Some of these c ases will predictably relate to t he obligation
of States to prosecute and punish indiv iduals guilty of torture and other CIDTP
under their domestic law. Other cases, speci cally in countr ies where indigenous
communities posses s legal recognition as part of t he domestic justice system, the State
may face rulings condemn ing it for committing torture through its State o cials.
Both situations will incentivise States to take measures in response to try to avoid
international responsibility. Yet, these responses ca n also end up transgressing other
indigenous peoples’ rights, which wou ld additionally give rise to internat ional cases
against the State. erefore, measures seeking to regulate indigenous customary
law must walk a ne line between banning torture/CIDTPs and protecting sel f-
determination.
In order to make sure they comply with internat ional human rights law, States
should limit their act ions to the minimum. What exactly const itutes the “minimum”
will var y depending on whether the conduct is u ltimately classi ed as tortu re or
CIDTPs. Indeed, whi le in general terms States are obliged to, at the least, (i) prosecute
and punish those who commit tor ture and CIDTPs and (ii) guarantee the r ight of
those a ected by torture to redress, even when the conduct was p erformed by private
parties,107 as s een above, speci c rules apply to di erent conduct. Partic ularly relevant
to this discussion, States facing corporal punishment amounting to torture will have
to prosecute and punish every per petrator with “severe penalties”, as mandated
by Articles6 of the IACPPT.
108 States facing punishments amounting to CIDTPs
would only need to prevent and punish them, wit hout being obliged to enact severe
penalties.109
is highlights the rst conundrum for the regulation of indigenous corporal
punishments, given t he IACtHR’s lack of clarit y as to how the concepts of torture and
107 IACPPT (n 31) arts 6, 8 and 9. Als o, on State responsibility for pr ivate actors, see Case of Vel as que z
Rodriguez v. Honduras (Merits Judgment) Inter-America n Court on Human Right s Series C No 7
(29July 1988).
108 IACPPT (n 31) art 6.
109 Ibid.
Alonso Gurmendi Dunkelberg
402 Intersentia
CIDTPs should be distinguished, leading to de cient State policies. ese de cient
policies wil l, in turn, be aggravated by the fact that any governmenta l measures
directed at punishi ng and redressing instances of torture and CI DTP will likely also
generate signi cant backlash among indigenous communities, risking social unrest,
which in turn will put indigenous communities at higher risk of social alienation
and/or dispropor tionate governmental repression.110 us, t hese two problems, when
jointly analysed , create a vicious circle where State e orts to reduce human rights
violations by indigenous communities may lead to human rights violations against
indigenous communities.
In order to solve this problem, innovative approaches are necessary. To this end,
States should set up a system or process, in collaboration with the Inter-American
Commission on Human Rights (IACHR), to address these concerns. is process
would have to include, as a minimum: (i) consultation procedures with the Inter-
American System; (ii) the application of ILO Convention 169111 consultation
mechanisms; and (iii) the creation of domestic legal regimes and policies to address
speci c ally indigenous corporal punish ment.
As mentioned, t he rst step in setting up th is process would require member
States to initiate a consultation processes with the IACtHR u nder Article64 of the
American Convention on Human Rights.112 i s will seek to add clarit y to the legal
distinction of indigenous corporal punishment that counts as CIDTP and indigenous
corporal punishment that counts as torture, as per the Caesar case. Speci cally, the
Court should determi ne what subjective and object ive factors under the Bueno Alves
standard States ca n take into consideration when dealing w ith such cases. Once the
Court sets a standard, States would need to set up domest ic policies on the judicial
handling of indigenous cor poral punishment cases.
As stated above , a merely reactive or punitive polic y will be c ounter-productive.
States should also begi n a process to ensure that indigenous customary law conforms
to international human rights standards. To do this, States should make sure to
comply with the requirements of IL O Convention 169.113 Indeed, a ny attempt by States
to modify indigenous practices that amount to torture or CIDTPs will constitute a
major a e ctation of indigenous i nterests; and as st ated by the IACtHR, Stat es have an
obligation to carr y out “special and di erentiated consultation processe s when certain
interests of indigenous peoples and commun ities are about to be a ected.”114 States
would therefore be obliged not to simply derogate tortuous/CID indigenous c ustomary
law or assume a purely punitive approach to indigenous cor poral punishments.
110 Ruiz-Chiriboga (n 9) 976–980.
111 ILO C onvention 169 (n 17).
112 Amer ican Convention on Human R ights (adopted in 22November 1969, entered into forc eJuly 18,
1978) 1144 UNTS 123 art 25.
113 ILO C onvention 169 (n 17).
114 Sarayaku v. Ecua dor (n 16) para 165.
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Netherlands Q uarterly of Human Ri ghts, Vol. 33/4 (2015) 403
Similar mecha nisms exist for deali ng with various forms of social problems.
Human rights law is no stranger to condemnation of controversial cultural
practices. For example, Ar ticle5 of the Convention for the Elim ination of all forms
of Discrimination Against Women (CEDAW) speci cally a rms that States Par ties
shall take a ll appropriate measures to “modify t he social and cultu ral patterns of
conduct of men and women” in order to eliminate all “prejudices a nd customary and
all other pract ices which are ba sed on the idea of the inferiority or the superiority of
either of the sexes or on stereoty ped roles for men and women.”115 Article24(3) of the
Convention on the Rights of the Child (CRC), in turn, obliges State Parties to “take
all e ective and appropriate measures w ith a view to abolishing traditiona l practice s
prejudicial to the healt h of children.”116 It would be surprising, therefore, that the
torture regime, which has attained a jus coge ns status and is considered one of the
main international cr imes in modern international law, would work under such a
di erent approach, and only speci cally wit h regard to one group of individuals.
us, speci c educational me asures and monitoring mechanisms cou ld be put in
place to make sure community leader s and State o cials u nderstand their obligations
under human rights law. is could be an excellent opportu nity for the Rapporteur
on the Rights of Indigenous Peoples at the Organization of American States to work
closely with member States to ensure that the process of modi cation is undertaken
in a cultura lly sensitive manner and that the right to cu ltural integrity is gua ranteed.
Of course, this process will take a long time to be implemented. is means that,
for more immediate matters, States should ensu re that cases involving indigenous
customary law where tortu re or CIDTPs are a lleged by one party can be appealed to
a specialised rev iew body. is way, States will be able to make sure that indigenous
practices comply with the tor ture and CIDTP standa rd referenced above. States
could also use such a system to incorporate the accused into the aforementioned
modi cation process as par t of the penalty.
7. C ONC LU SI ON
is article ha s argued that given that tortu re and other CIDTP are subject to a special
regime under international law, including their absolute prohibition and the jus
cogens nat ure of t ortu re, th eir de nition and understanding should not and ca nnot be
based on cultural relativism. Such an approach risks destroying the very foundation
of international human rights law, which is based on t he notion of universality and
indivisibi lity. As such, indigenous corpora l punishments should be measu red against
the general de nition of torture and CIDTP, as embodied in the relevant treaties and
115 Conventi on on the Elimination of A ll Forms of Discri mination again st Women (adopted
18September 1979, entered into force 3Sept ember 1981) 1249 UNTS 13 art 5(8).
116 Decla ration of the Rights of t he Child (adopted 20November 1989, entered into force 2Se ptember
1990) 1577 UNTS 3 ar t 24(3).
Alonso Gurmendi Dunkelberg
404 Intersentia
jurisprudence. According to such ru les, it is fairly clear that corporal punishments
are generally considered banned and that there is a strong resistance to them in
international fora. erefore, provided that any adjustment of indigenous customary
law respects the right of ind igenous communities to prior consultation, there would
seem to be no part icular reason why members of indigenous com munities should see
their human rights subjected to harsher standards due to their i ndigenous identity.
International human rights l aw seeks to protect individuals rst.
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