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V I . C U S T O m A Ry L Aw, P E N A L S y S T E m S A N D A C C E S S T O j U S T I C E
Still, the level of acceptance of legal pluralism, through state acceptance and application of
indigenous peoples’ customs and customary law appears selective and pragmatic, and largely
determined by the economic interests of the majority population or certain sectors of the national
community Henriksen 2008.
6.2. OffENCES AND PENAL SySTEmS
Convention No. 169 establishes that indigenous peoples’ traditional methods of punishment shall
be respected and also taken into account in the administration of general law.
Convention No. 169 Article 9
1.
To the extent compatible with the national legal system and internationally recognised
human rights, the methods customarily practised
by the peoples concerned for dealing with offences committed by their members shall
be respected. 2.
The customs of these peoples in regard to penal matters shall be taken into
consideration by the authorities and courts dealing with such
cases. Article 10
1.
In imposing penalties laid down by general law on members of these peoples account
shall be taken of their economic, social and cultural
characteristics. 2.
Preference shall be given to methods of punishment other than coninement in prison.
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I N D I G E N O U S T R I B A L P E O P L E S ’ R I G H T S I N P R A C T I C E – A G U I D E T O I L O C O N V E N T I O N N O . 1 6 9
Under Article 91, States are obliged to respect indigenous peoples’ customary methods for dealing
with criminal and other offences, to the extent such methods are compatible with the national
legal system and international human rights law. Customary punishment methods that violate
individual human rights are thus not legitimized under this provision. The other criterion in Article
91 – compatibility with the national legal system – is not limited to the question of substantive
legal compatibility, as it is also a question about whether this is compatible with the overall system of
administration of justice in the country concerned. Many indigenous peoples still practice their
traditional methods for dealing with minor offences committed by their members, without state
interference – whereas more serious offences normally are dealt with under the applicable national
legal procedures. However, also in cases where general legal procedures are applied in response to
offences committed by indigenous individuals, the customs of the indigenous people concerned shall
be taken into account by authorities and courts dealing with such issues Article 9 2; cf. Henriksen
2008.
Members of indigenous peoples are often overrepresented among prisoners and among
deaths in custody. In Australia, between 1980 and 1997, at least 220 Aborigines died in
custody. While Aborigines represent only 1.4 of the adult population, they accounted for
more than 25 of all custodial deaths due, for example, to poor prison conditions, health
problems and suicide. This highlights the need for efforts by judges, courts and national
administrators to ind alternative forms of punishment when dealing with indigenous or
tribal offenders.
3
3 ILO Convention No. 169: A Manual, ILO, 2003.
6.3. ACCESS TO jUSTICE
