Indigenous Corporal Punishments in Ecuador and the Prohibition of Torture and Ill-Treatments
42 Pages Posted: 2 Feb 2012 Last revised: 16 Sep 2013
Date Written: February 1, 2012
Indigenous customary law (ICL) has always coexisted with national law throughout the history of Ecuador. At first it was tolerated, then it became illegal, and now it is fully recognized by the Constitution and by International Human Rights Law (IHRL). An integral part of ICL is the power to enact and apply punishments. Such punishments are in principle lawful, because of the broad wording of the constitutional recognition. A number of sanctions and the rituals that precede them have a physical component. As a result, indigenous peoples and Ecuadorian authorities are engaged in a debate over the compatibility of such punishments with human rights. Some maintain that corporal sanctions violate the prohibition of torture and other cruel, inhuman, and degrading punishments (CIDP). Indigenous peoples respond that their traditional practices must be respected. The aim of this research is to show that not all indigenous corporal punishments amount to forbidden acts. I will not try to undermine the prohibition of torture, instead, using the elements of the concept of ‘torture’ and ‘cruel, inhuman, and degrading punishments’ (CIDP) given by IHRL, I will show that certain indigenous corporal punishments do not fulfill all the requirements of torture or CIDP. I will also demonstrate that despite the views of several international bodies of the contrary, the culture of a society is always present in what it considers acceptable suffering for the assessment of the elements of torture and CIDP.
Keywords: torture, cruel inhuman or degrading punishment, legal pluralism, corporal punishments, indigenous peoples, Ecuador
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