I. INTRODUCTION
If the practice of torture had been confined to persons living in poverty, it would not be absolutely prohibited today. Many would consider such a claim provocative if not blasphemous. Torture is universally prohibited, and all torture is equally reprehensible. This is the universal, abstract, liberal notion underpinning the international prohibition of torture (the prohibition) whose absolute status has been, and continues to be, hard fought for.Footnote 1 These characteristics are part of its appeal and strength. Yet, the prohibition obscures structural differences among its right-holders in terms of being exposed to torture and being able to effectively exercise their rights.
The special status of the prohibition in international human rights law derives from torture's egregious nature, which is typically associated with extreme, and exceptional, abuse of State power for political ends.Footnote 2 Political torture is frequently at the centre of public accounts, reports, and legal interventions, in other words a matter of international concern.Footnote 3 In contrast, systemic, routine abuse, which disproportionally affects persons living in poverty and other marginalised groups, has been perceived as a national problem of dysfunctional institutions and criminal justice systems. Consequently, its victims, and their experiences, remained largely neglected, or ‘underperceived’.Footnote 4
Since the 1970s, when the foundations for the United Nations (UN) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture)Footnote 5 were laid, international human rights law has undergone significant changes. Multiple challenges to the abstract conception of human rights resulted in the adoption of a series of instruments that reflect a greater focus on the situation of particular groups, with a special emphasis on discrimination, status and vulnerability. This turn is reflected in treaties on the human rights of women,Footnote 6 the child,Footnote 7 persons with disabilities,Footnote 8 migrant workers and members of their families,Footnote 9 and other instruments.Footnote 10 Socio-economic status, while recognised as a ground of discrimination,Footnote 11 has not become the subject of a separate international treaty. Instead, emerging against the background of the perennially contested new international economic order and right to development,Footnote 12 came an international focus on extreme poverty and human rights in the 1990s. Yet, three decades later, the UN Special Rapporteur on Extreme Poverty and Human Rights criticised both the development and human rights community for their respective, and joint failure to adequately address violations of civil and political rights, including freedom from torture, of persons living in poverty.Footnote 13
Discrimination serves as both a legal standard of prohibited conduct and as a conceptual lens to describe practices deemed problematic because of the unequal treatment and/or outcomes they engender. Its pivotal role in human rights law stems from the fact that discrimination typically produces, perpetuates or at least contributes to inequality, marginalisation and vulnerability.Footnote 14 Marginalisation refers to processes of social exclusion and denial of power. The lack of equality, recognition, access to resources and services, and participation inherent in marginalisation both causes, and results from, poverty.Footnote 15 Consequently, it enhances vulnerability by heightening the risk of becoming a victim of human rights violations. Poverty is now, as discussed further at III A, widely understood to encompass both absolute and relative poverty, which overlaps with economic inequality. This article adopts a multidimensional and intersectional understanding of poverty attentive to systemic and structural factors, and the enhanced vulnerability to violence that it entails.
Evidence from a variety of sources suggests that a large number of victims of torture are economically disadvantaged (with considerable variations, and often compounded by other factors, such as gender and/or ethnicity). Being poor typically means to be more vulnerable to abuse of power, including arbitrary arrest, detention and torture. These experiences frequently form an integral part of everyday violent relationships with authorities and others that persons living in poverty must navigate. Yes, these realities have not been adequately acknowledged, or addressed in the international human rights law context, with few notable exceptions.Footnote 16 Over the last decade, there has been a growing debate on, and awareness of the detrimental impact of pretrial detention on members of disadvantaged communities,Footnote 17 and of the link between corruption and torture.Footnote 18 In 2018, the UN Special Rapporteur on Torture identified discrimination, including socioeconomic marginalisation, as one of the primary challenges regarding the universal implementation of the prohibition.Footnote 19 These developments can be attributed to the influence of pioneering empirical research, increasing focus by non-governmental organisations (NGOs) on the subject, and advocacy on dysfunctional criminal justice systems and marginalisation.Footnote 20 They evidence a growing recognition of the need to complement a standard-based monitoring approach with a closer engagement with socio-political realities. Nonetheless, there has been no in-depth legal analysis in the academic literature, or concerted responses to address the specific challenges raised by practices of torture targeting, or disproportionately affecting persons living in poverty, and their implications for the application of the prohibition.
The lack of an analysis that is informed by a contextual understanding of torture raises important conceptual, legal and strategic questions. It suggests that legal scholars and practitioners working on torture have insufficiently engaged with the wider literature on the link between poverty and (State) violence.Footnote 21 There is limited evidence of interrogating underlying structures and material factors such as the ‘logic of particular socio-economic arrangements’ highlighted by critical legal scholars,Footnote 22 the causes and impact of hierarchies and exclusions,Footnote 23 or the lived experience of marginalised subjects.Footnote 24
Drawing on both this body of literature and publications on torture, this article revisits the evolution of the prohibition, probing the extent to which it has been responsive to discrimination and vulnerability of economically marginalised persons. It identifies assumptions and biases evident in legal responses to torture and other ill-treatment, before examining the prevalence of torture of persons living in poverty. This analysis provides the basis on which to develop the framework for a contextual approach to the interpretation and implementation of States’ obligations and to torture prevention more broadly that is alive to the conditions and lived experiences of those who are often most at risk of torture.
Following this Introduction, Part II situates responses to torture of persons living in poverty in the broader development of international human rights law, namely an increasing emphasis on discrimination and vulnerability of members of certain groups. Revisiting the trajectory of the prohibition shows that the focus on political torture influenced the development of the legal framework and approaches, and delayed a greater recognition of, and adequate responses to the challenges raised by the situation facing particular—marginalised—groups.
Part III explores the notion of poverty in international human rights law, particularly whether it is conceptually sufficiently clear to serve as a basis for tailored, contextual responses to torture. It then analyses the extent to which the definition of torture provides openings to take into consideration the experiences of those living in poverty. At a factual level, it examines whether available evidence shows that persons are more at risk of (certain forms of) torture on account of being poor, and, if so, in which contexts, and whether they face particular challenges in respect of the exercise of their rights.
Part IV develops the parameters of a contextual approach to the interpretation and implementation of the prohibition. It sets out heightened obligations of States before examining which preventive measures are best suited to enhance protection, and what steps can advance accountability and reparation for torture that economically marginalised persons have been subjected to. Further, it explores how non-discrimination and human rights-based approaches to combat poverty might usefully complement torture-specific responses. The contextual approach developed has profound implications and poses challenges for those who work on the prohibition, particularly on how best to respond to, and engage with realities on the ground to bring about change. In examining these challenges, the article argues that a concerted effort is needed to respond to the prevalence of torture on the margins of international concern, and to make those at the receiving end exposed to precarious, and often violent, lives the centrepiece of any strategies to overcome this intolerable state of affairs.
II. FROM THE UNIVERSAL SUBJECT TO VULNERABLE PERSONS
A. The Prohibition of Torture and Vulnerable Groups
The prohibition shares the general trajectory of international human rights law in its recognition of, and heightened focus on discrimination and vulnerability, albeit in a rather belated and more limited fashion. The developments after 1945 point towards a conceptual bias in the dichotomy between political or conflict-related torture viewed as a matter of international concern, and routine, institutionalised torture.Footnote 25 The Convention against Torture's travaux préparatoires evince limited awareness of, and focus on systemic, routine torture. The Convention is silent on the identity of right-holders and victims who are referred to in generic terms. The infliction of severe physical or mental pain or suffering ‘for any reason based on discrimination of any kind’, as one of the elements of torture, invites a focus on a prohibited ground of discrimination, such as ‘social origin’ or ‘other status’ recognised in Article 26 of the International Covenant on Civil and Political Rights.Footnote 26 Yet, the element attracted little discussion during the travaux,Footnote 27 and has played a marginal role in the Committee against Torture's (CAT) initial practice although it was later mentioned in its General Comment No 2.Footnote 28
The last three decades have witnessed an increasing focus on the nexus between discrimination and torture. This focus has emerged in the wake of significant shifts in international human rights law that heralded a closer emphasis on identity and situated experiences. Critiques of universal, liberal and male-oriented human rights conceptions, demands for targeted protection regimes, and sustained advocacy campaigns to recognise the rights of particular groups have resulted in a number of instruments that complement the generic International Bill of Human Rights.Footnote 29 Yet, these treaties either have no explicit reference to torture or include its prohibition among other provisions, commonly stipulating that persons falling within the treaty's scope have the right to be free from torture.Footnote 30
It took considerable time before the issue of torture of members of particular groups became the subject of more detailed attention. This applies in particular to recognising gender-based violence as a form of torture.Footnote 31 More recently, this development has been complemented by an increased focus on torture of lesbian, gay, bisexual, transsexual and intersex persons (LGBTI).Footnote 32
Children have been recognised to be at risk of harm in detention because of ‘their stage of development and limited capacity to escape or react to abuse emanating from their environment’.Footnote 33 Persons with disabilities are exposed to torture in various settings on account of mental health challenges, lack of capacity and ability to resist certain treatment,Footnote 34 vulnerability due to impairments,Footnote 35 and inadequate accommodation in detention resulting in unacceptable levels of suffering.Footnote 36 Indigenous peoples have been identified as being especially vulnerable to torture in the context of armed conflict, protest movements and development projects.Footnote 37 Racial discrimination as a factor motivating torture, or increasing the risk thereof, has been highlighted in respect of several countries.Footnote 38 Recently, the experience of refugees and other migrants has received considerable attention. Their precarious status, harsh policies, and xenophobia frequently exposes them to the risk of torture or other ill-treatment.Footnote 39
UN anti-torture bodies have accorded greater importance to vulnerability in their recent practice. In 2018, the CAT identified women, children, LGBTI people in detention, minorities and indigenous peoples in prison, life-sentenced prisoners, people who use drugs, and prisoners with physical and mental disabilities as vulnerable groups of detainees.Footnote 40 The Special Rapporteur on Torture has drawn an explicit link between discrimination and an enhanced risk to torture and identified several vulnerable groups. He has defined vulnerability in relational terms
as a degree of disempowerment relative to the prevailing environment and circumstances, entailing diminished independence and capacity for self-sustenance, self-protection or self-preservation and, conversely, an increased exposure to risks of injury, abuse or other harm.Footnote 41
These responses acknowledge the need to tailor measures and responses to the specific situation and experiences of members of vulnerable groups.
The conceptual work undertaken by human rights bodies and the jurisprudence of regional courts on the vulnerability of certain groups to human rights violationsFootnote 42 signal a more situation-specific understanding of human rights and States’ obligations. It has been criticised, though, on account of its expansionist tendency and broadening even further the positive obligations of States.Footnote 43 Even for those generally sympathetic to the notion, there are obvious risks in designating groups as inherently vulnerable. Such approach may detract from the inherent vulnerability of all human beings.Footnote 44 It might create new hierarchies, be ad hoc, focusing primarily on certain groups whose plight has been prominent in public debates, and result in a lack of conceptual clarity and consistency.Footnote 45 This is particularly the case where different instruments and bodies identify different groups, or do not consistently refer to specific groups, as being vulnerable. It also risks treating members of a group in an undifferentiated fashion, thereby replicating a generic approach on a group basis.Footnote 46 Further, referring to members of a group as vulnerable might be patronising and constitute a form of essentialist labelling that can be unduly stigmatising and victimising.Footnote 47 An approach to vulnerability that is cognisant both of the material, societal, political and institutional factors producing it, and the rights, dignity and agency of persons finding themselves in such situations appears best suited to minimise these risks.
B. The Prohibition of Torture and Persons Living in Poverty
In 2017, the Special Rapporteur on Extreme Poverty and Human Rights pointedly criticised the limited focus of the human rights and the development community on civil and political rights violations of persons living in extreme poverty.Footnote 48 A review of the record of UN bodies specifically mandated to promote and protect the right to be free from torture largely vindicates Alston's critique. The mandate of the Special Rapporteur on Torture was established in 1985. It took until 2000 for a mandate holder explicitly to highlight the exposure of persons living in poverty to torture, before concluding:
The Special Rapporteur has neither the competence nor the expertise to offer solutions to change these bleak realities. He believes, however, that as long as national societies and, indeed, the international community fail to address the problems of the poor, the marginalized and the vulnerable, they are indirectly and, as far as exposure to the risk of torture is concerned, directly contributing to the vicious circle of brutalization that is a blot on and a threat to our aspirations for a life of dignity and respect for all.Footnote 49
This paragraph usefully draws attention to the dual challenge of addressing poverty, understood as a condition that increases vulnerability to violations, and of providing protection to those exposed to the risk of torture on account of that condition. However, the Special Rapporteur did not assume responsibility for how his mandate could contribute to change the equation between poverty and torture he had identified. Subsequent reports identified poverty as a factor in the context of exposure to, reasons for, and methods of torture that victims were subjected to, without, however, elaborating in greater detail on the implications of such findings.Footnote 50 Significantly, 20 years after the then Special Rapporteur highlighted the failure to act on the link between poverty and torture, no thematic report has been dedicated to the subject.
However, in 2018 a report of the Special Rapporteur explored the link between discrimination and torture, and explicitly referred to socioeconomic marginalisation as ‘an important factor exposing persons to abuse by States and non-State actors’.Footnote 51 This was followed by a report on corruption and torture, which highlighted how corruption exposes socio-economically marginalised persons to an enhanced risk of torture.Footnote 52
The CAT has referred to discrimination and socio-economic status in its practice, albeit inconsistently. Its General Comment No 2 emphasised the principle of non-discrimination.Footnote 53 It stated that ‘[t]he protection of certain minority or marginalised individuals or populations especially at risk of torture is part of the obligation to prevent torture or ill-treatment’, mentioning, amongst others, social origin and economic or indigenous status as relevant statuses.Footnote 54 The Committee stressed the need for ‘data disaggregated by age, gender and other key factors’ to enable ‘[c]ontinual evaluation … of effective measures’,Footnote 55 without, however, specifically referring to socioeconomic status. It further exhorted States parties to describe ‘factors affecting the incidence and prevention of torture or ill-treatment, as well as the difficulties experienced in preventing torture or ill-treatment against specific relevant sectors of the population, such as minorities, victims of torture, children and women …’.Footnote 56 While only illustrative, the listed groups reflect the Committee's priority focus.
In its subsequent practice of reviewing States parties’ reports it has not insisted on the provision of disaggregated data concerning socio-economic status.Footnote 57 It has neither, notwithstanding expressing concerns in this regard, developed a consistent practice of adopting tailored recommendations in response to evidence of systemic torture disproportionately affecting the poorer strata of society. A pertinent example are the Committee's limited responses to alternative reports submitted by the NGO World Organisation against Torture (OMCT) and partner organisations which provided in-depth contextual assessments that highlighted issues such as corruption and torture of the urban poor in Kenya, and the lack of land reform and violent policing against impoverished members of rural communities in the Philippines.Footnote 58
The Committee's General Comment No. 3 mentions specific vulnerable groups and grounds of prohibited discrimination, including economic status, and exhorts States parties to adopt special measures to ensure access to redress mechanisms,Footnote 59 without, however, providing detailed guidance specifically tailored to persons living in poverty.Footnote 60
A lack of specific focus on poverty and discrimination is also evident in the Committee's practice of inquiries, which, according to Article 20(1) of the Convention against Torture, require ‘reliable information … that torture is being systematically practised’. The Committee has considered ‘that torture is practised systematically when it is apparent that the torture cases reported … are seen to be habitual, widespread and deliberate in at least a considerable part of the territory of the country in question.’Footnote 61 This criterion may be met in cases of routine, systemic torture by law enforcement agencies.Footnote 62 Yet, as evident in the inquiries carried out by the Committee to date, its main focus has been on torture in the context of counterterrorism and conflict.Footnote 63 Some of the inquiries, such as on Mexico, Yugoslavia (Serbia and Montenegro), Brazil, Nepal, and Lebanon, addressed the issue of institutionalised torture, at least to some extent. However, even these inquiries either did not refer to the socio-economic status of victims or, where they showed some awareness, did not systematically link recommendations back to the findings that torture has a distinctive socio-economic dimension.Footnote 64
In its jurisprudence, the Committee has not explicitly dealt with the nexus of poverty and torture. In their individual opinion in the case of Dzemajl et al. v Yugoslavia, two of its members drew attention to the special vulnerability of the ‘Romani ethnic group’, and the greater protection that the State must afford.Footnote 65 They also stressed the poverty resulting from their ill-treatment and forced displacement. In Osmani v Serbia, the Committee considered the particular vulnerability of the victim, who was of Roma ethnic origin, on account of historical discrimination and prejudice when determining whether treatment reached the threshold of Article 16 of the Convention.Footnote 66 However, it did not draw out any further legal consequences flowing from such discrimination and vulnerability.
The Subcommittee on Prevention of Torture's (SPT) practice is in marked contrast to that of other UN bodies. It has shown considerable awareness of the role that poverty and discrimination plays, and how it enhances exposure to the risk of torture:
It is also recognized that there is a nexus between poverty, discrimination and pretrial detention. It is known that the poorest and most marginalized individuals or groups in society are most likely to come into contact with the criminal justice system and therefore to be held in pretrial detention. They can be disadvantaged and discriminated against by the criminal justice system in a number of ways, for example if they are unable to afford legal representation, bail and other alternatives to detention. Discriminatory attitudes may also expose them to conditions of detention stricter than those applied to other detainees.Footnote 67
The SPT has been particularly assertive when highlighting the pernicious effect of corruption on persons living in poverty, finding, in the first report produced by a UN body dedicated to the subject, that ‘there is a strong correlation between the levels of corruption within a State and the levels of torture and ill-treatment found there’.Footnote 68
The practice of regional human rights bodies on the link between socio-economic status and torture differs considerably. The African Commission on Human and Peoples’ Rights’ Robben Island Guidelines include references to vulnerable groups but not to socio-economic discrimination.Footnote 69 The Commission has included a list of questions on vulnerable persons as part of its State reporting review procedure, albeit not with reference to persons living in poverty.Footnote 70 Recently, it has highlighted discrimination and marginalisation in its General Comment No 4Footnote 71 and in its Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa,Footnote 72 although rarely in its jurisprudence.Footnote 73 In the most pertinent ruling on the nexus between poverty and torture by an African human rights body, the African Committee of Experts on the Rights and Welfare of the Child held Senegal responsible for its failure to protect children aged between 4 and 12 years who had been forced by Qur'anic schools to beg on the streets and had been subjected to miserable living conditions and physical abuse.Footnote 74
The European Court of Human Rights has dealt with a number of Article 3 (prohibition of torture) cases that raised issues of the treatment of persons from disadvantaged backgrounds. In its case law, the Court has increasingly recognised the link between discrimination and torture, with reference to grounds such as race,Footnote 75 gender,Footnote 76 sexual orientation,Footnote 77 political opinion,Footnote 78 religion,Footnote 79 and the different status of detainees.Footnote 80 Its approach has, however, also been characterised by a lack of in-depth engagement with relevant socio-economic factors. Bouyid v Belgium is a landmark case in point.Footnote 81 It concerned a situation of long-standing tensions between the local police and a family with a migration background that resulted in police officers slapping a 17-year-old boy and his older brother. The Grand Chamber held that any person in a custodial situation is vulnerable, with recourse to physical violence diminishing the person's dignity, and emphasised the vulnerability of minors which require law-enforcement officers to ‘show greater vigilance and self-control’.Footnote 82 The case illustrates the Court's predilection for the formulaic invocation of principles and factors, here a liberal notion of dignity combined with generic vulnerability, instead of probing to what extent institutional practices and the status of the victim may have contributed to the ill-treatment.
The Inter-American Commission on Human Rights (Inter-American Commission) has undertaken numerous country visits in which it has drawn attention to structural factors, including the nexus between poverty and human rights violations, which it has also addressed in its thematic reports.Footnote 83 The Inter-American Court of Human Rights (Inter-American Court) has developed a jurisprudence marked by its close attention to the link between structural factors, status (often multiple), discrimination and vulnerability, particularly in cases of gender-based violence,Footnote 84 and ill-treatment of children,Footnote 85 indigenous peoples,Footnote 86 persons with mental disabilities,Footnote 87 and migrants.Footnote 88 It has repeatedly emphasised poverty and socio-economic circumstances as factors to be taken into consideration,Footnote 89 including in cases of torture, such as in Ximenes Lopes v Brazil where it drew attention to the intersectional dimension of extreme poverty, age, indigenous peoples and mental disabilities.Footnote 90 The Court has also ordered reparation measures designed to tackle the root causes of discriminatory treatment of marginalised persons.Footnote 91 The overview shows that UN treaty bodies, special procedures mandate holders and regional human rights systems have increasingly addressed issues of discrimination, marginalisation and vulnerability of members of various groups to torture, albeit not necessarily with a primarily focus on its socio-economic dimension.
C. Non-Governmental Organisations and Torture of Persons Living in Poverty
Human rights bodies do not operate in a vacuum. They are closely connected to both NGOs and academia in terms of personnel and working relationships. The ‘anti-torture movement’ consisting of NGOs and others working on the prohibition may be said to constitute both a transnational networkFootnote 92 and an epistemic community. Such a community has been described as ‘a network of professionals with recognised expertise and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain or issue-area’Footnote 93 whose members use ‘shared discursive practices’.Footnote 94 Such communities influence governance through their ideas and understanding of social realities, whereby shared understandings are sustained and developed by ‘a community of practice’.Footnote 95 Actors working on the prohibition share these characteristics, though there are significant differences in the approaches taken.
The anti-torture movement has been largely characterised by a legal orientation combined with a medical and social focus on rehabilitation.Footnote 96 The legal approach has been aimed at enhanced legislative and institutional protection through engagement with human rights bodies. Organisations have mostly operated within the existing anti-torture paradigm and responded to developments in other fields rather than taking the lead in framing discourses. Their approaches have been characterised by limited consideration of structural factors sustaining the practice of torture and related discourses. The criticism expressed at the nature and modus operandi of the human rights movement writ large therefore applies to a considerable degree to the actors constituting the anti-torture movement.Footnote 97
However, notably, some NGOs have engaged with the nexus between poverty, discrimination and torture. OMCT issued a landmark interdisciplinary study in 2006.Footnote 98 It found that ‘[S]tate violence, understood as political terror, torture and incarceration, is highly correlated with broader composite socio-economic indexes, with income as the single most powerful explanatory socio-economic factor.’Footnote 99 Dignity, a Danish-based human rights organisation, has made a distinctive contribution to torture prevention by focusing on policing and the urban poor,Footnote 100 and the link between corruption, poverty and torture, including detailed country studies on the Philippines, South Africa, Kenya and Bangladesh.Footnote 101 The Asian Human Rights Commission (AHRC), an NGO based in Hong Kong, has persistently highlighted the socio-economic dimension of torture, and documented people's exposure to corruption and police abuse.Footnote 102 It has linked the persistence of these practices to the weakness of criminal justice systems and advocated for the strengthening of the rule of law and relevant institutions as key prerequisites for the effective prohibition of torture.Footnote 103
A review of recent reports published by Amnesty International and Human Rights Watch as two major NGOs working on torture indicates an increasing emphasis on policing and its impact on particularly vulnerable groups.Footnote 104 The emerging approach is highly contextual, often with a focus on specific groups.Footnote 105 Organisations with a medical focus, namely the International Rehabilitation Council for Torture Victims (IRCT), have also highlighted the link between poverty and torture, calling on States ‘to include the eradication of torture and the right to rehabilitation in their poverty reduction policies and strategies, including all development policies and programmes’.Footnote 106
This brief review shows that at least some human rights organisations have recognised the significance of poverty in their work on torture. Alston's critique that the civil and political rights of persons living in poverty ‘are completely ignored, explicitly excluded from the analysis or mentioned only in passing’Footnote 107 therefore needs to be more nuanced when considering the record of anti-torture organisations. Nonetheless, a number of structural factors, particularly NGOs being frequently staffed by middle class personnel, based in capitals, and focusing on high-profile cases, can be antithetical to anti-torture work that is informed by, and responsive to the realities experienced by people living in poverty.Footnote 108
III. POVERTY AND TORTURE: CONCEPTS, EVIDENCE AND PRACTICE
A. The Notion of Poverty
The World Bank has defined poverty pithily as ‘pronounced deprivation in well-being’.Footnote 109 Poverty has traditionally been largely defined with reference to income and purchasing power.Footnote 110 As used in the Sustainable Development Goal 1: ‘End poverty in all its forms everywhere’, it refers to an income of less than $1.90 a day, revised upward from $1.25 in 2015.Footnote 111 Absolute poverty is measured based on the income needed to meet basic needs.Footnote 112 The absolute poverty line has been criticised as being too low, covering at best only basic necessities in the poorest countries.Footnote 113
The notion of relative poverty has the advantage of reflecting the standards of living in a particular society, thereby broadening the geographic scope beyond the world's poorest regions, and casting a spotlight on inequality within societies.Footnote 114 Relative poverty is commonly defined with reference to the percentage (50–60 per cent) by which income falls below the median income.Footnote 115 Such percentage provides a useful indicator although it can describe widely divergent realities. The Inter-American Development Bank has developed a more nuanced, graduated system of indicators for the Americas, divided into the extreme poor (income of under $2.50 a day); moderate poor ($2.50–4); vulnerable class ($4–10); middle class ($10–50); high-income class (over $50).Footnote 116 The strength of the conventional income-based approach is its measurability, even though there are methodological difficulties in estimating the income and purchasing power needed to meet basic needs.Footnote 117 It can serve as a useful indicator of poverty when documenting, monitoring and researching the socio-economic background of (alleged) torture victims.
This utility notwithstanding, a notion of poverty based on income and consumption that focuses exclusively on the most basic needs for survival is inadequate in a human rights context. Sen's work in particular has fundamentally transformed the prevailing understanding of poverty as deprivation of capabilities, which are understood as ‘the substantive freedoms [a person] enjoys to lead the kind of life he or she has reason to value’.Footnote 118 Sen's approach, which has moved poverty beyond the purely economic sphere, has been influential in shaping the discourse on, and institutional understandings of development and poverty.Footnote 119 The resulting multidimensional understanding is shared by persons living in poverty who have emphasised material poverty, dependency, feelings of helplessness, inability to participate in culturally defining activities, humiliation suffered at the hands of various actors and a sense of acute vulnerability stemming from destitution.Footnote 120
The broader debate on poverty has been reflected in the work of human rights bodies. The UN Guiding Principles on Extreme Poverty and Human Rights (the Guiding Principles)Footnote 121 constitute the main human rights reference document, serving ‘as a guide to how to respect, protect and fulfil the rights of persons living in extreme poverty in all areas of public policy’.Footnote 122 They refer to the definition of poverty set out by the Committee on Economic, Social and Cultural Rights as
a human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights.Footnote 123
The definition acknowledges Sen's influence, incorporates structural factors and is noteworthy for explicitly linking the condition of poverty to the enjoyment of a range of human rights, including civil and political rights. The Guiding Principles define extreme poverty as
‘the combination of income poverty, human development poverty and social exclusion’ where a prolonged lack of basic security affects several aspects of people's lives simultaneously, severely compromising their chances of exercising or regaining their rights in the foreseeable future.Footnote 124
This definition integrates the conventional income poverty and human development approach and highlights social exclusion as a factor that undermines the exercise of rights. While social exclusion has now been recognised as an integral part of the notion, ‘[p]overty is related to, but distinct from, inequality and vulnerability’.Footnote 125 Exclusion is closely linked to discrimination, and often has an intersectional dimension, as recognised in the Guiding Principles:
Although persons living in extreme poverty cannot simply be reduced to a list of vulnerable groups, discrimination and exclusion are among the major causes and consequences of poverty. Persons living in poverty often experience disadvantage and discrimination based on race, gender, age, ethnicity, religion, language or other status.Footnote 126
These definitions view the lack of basic security as an integral part and consequence of poverty, an acknowledgment that is particularly relevant in the context of exposure to torture. As demonstrated below at III D., poverty and related inequalities create power imbalancesFootnote 127 and structure relationshipsFootnote 128 in ways that significantly enhance vulnerability to a spectrum of violence which frequently amounts to torture or other ill-treatment. These features call for a conceptualisation that views exposure to a heightened risk of ill-treatment as intrinsic to poverty, whereby the specific forms that such violations take are determined by the particular context.
Subjective understandings and perceptions of poverty are important if a human rights-based approach to poverty is to be taken seriously. While the ‘voices of the poor’Footnote 129 are not the sole criterion for defining poverty, they play a critical role in understanding the conditions of poverty and their nexus to torture, and in developing adequate policy responses. In that regard, Jensen et al. have rightly stressed the intersectional and multidimensional nature of poverty, counselling against thinking ‘about the poor as a unified group’.Footnote 130
B. Poverty and the Interpretation of Torture and Other Ill-Treatment
Severity and purpose are the two elements in the definition of torture in Article 1 of the Convention against Torture that lend themselves to an interpretation attentive to poverty as a relevant characteristic. Severity of pain or suffering is to be determined taking into consideration objective and subjective factors.Footnote 131 The European Court of Human Rights has in this regard referred to personal characteristics such as ‘sex, age and state of health of the victim’.Footnote 132 The Inter-American Court has endorsed this approach and developed it further, emphasising that ‘the personal features of an alleged victim of torture … should be taken into consideration when determining whether his or her personal integrity has been violated’Footnote 133 as they ‘may change the insight of his or her individual reality and, therefore, increase the suffering and the sense of humiliation …’.Footnote 134 The CAT has also considered vulnerability as a relevant factor in its jurisprudence.Footnote 135
Poverty, or socio-economic status as a protected characteristic, is a factor that enhances vulnerability because of the precariousness and lesser protection that it typically entails. In situations where the treatment is ostensibly inflicted to target or exploit the socially conditioned diminished ability to defend oneself against abuse of power, it is also likely to increase the level of humiliation and suffering. The degree of powerlessness of the victim is an important factor in this context. Powerlessness is here not understood generically as the inability to defend oneself in a custodial setting,Footnote 136 but as ‘symbolic exclusion from the human community’.Footnote 137 Torture of an already marginalised person aggravates such exclusion, particularly where it takes place in a continuum of violence committed against that person with impunity.
The socio-economic characteristics of a person may also be relevant for the infliction of severe pain or suffering ‘for any reason based on discrimination of any kind’ or, in short, discriminatory torture.Footnote 138 The discriminatory element in Article 1 of the Convention relates to the motive for the treatment, and has a potentially broad field of application.Footnote 139 It will be of particular relevance where the circumstances of a case indicate that persons have been targeted on account of their socio-economic status.Footnote 140 Insults, harassment or threats that invoke this status, stigmatising or stereotyping persons, and targeting and abusing individuals because of their socially constructed lower status and consequent diminished ability to protect and defend themselves, are key indicators of such discriminatory treatment. Systemic patterns of differential treatment, including higher arrest, detention, and confession rates, which cannot be objectively justified, are indicators of indirect discrimination.Footnote 141 Subjecting persons living in poverty to worse detention conditions, coercive extortion practices and particularly harsh forms of ill-treatment might also constitute prima facie evidence of discriminatory treatment. This is particularly the case where other, wealthier persons are treated more favourably in a similar situation. In addition to, or in lieu of, the discriminatory element, the purpose requirement will be met where it can be shown that persons living in poverty are forced to confess to a crime, where they are intimidated or coerced, including the extortion of money or services, and where they are punished for their conduct, because it is considered socially deviant, criminal or otherwise unacceptable.
Vulnerability stemming from, and discrimination related to poverty may serve as important factors in the determination of whether certain conduct amounts to cruel, inhuman or degrading treatment. The notion of degrading treatment is particularly salient, with its emphasis on feelings of ‘fear, anguish or inferiority capable of breaking an individual's moral and physical resistance’ and humiliation demonstrating ‘a lack of respect for, or diminishing, his or her human dignity’.Footnote 142 The concept of dignity, though characterised by its indeterminacy in international human rights law,Footnote 143 provides considerable potential to contextualise the limits of acceptable treatment of persons living in poverty.
Waldron's observation that treatment must be considered inhuman when it runs counter to ‘our common humanity’Footnote 144 is particularly valuable, as it alludes to the equal worth of every human person irrespective of one's status. Webster conceives of dignity as ‘an elemental status, which is diminished by, and demands freedom from, experiences that undermine a minimal kind of regard or capacity’.Footnote 145 She further links humiliation ‘to a lack of a basic ability to maintain standards that are socially deemed to befit human beings’.Footnote 146 This interpretation provides suitable criteria as to what constitutes acceptable treatment. A possible objection to its application to persons living in poverty would be that their elemental status is already diminished, which may adversely impact their self-respect. Feelings of fear, anguish and inferiority and experiences of humiliation are often an integral part of living in poverty. However, such an argument would be fallacious. The condition of poverty may not as such trigger the responsibility of the State for ‘treatment’ falling within the scope of the prohibition.Footnote 147 However, such an assessment neither lowers the threshold for treatment that any person is entitled to nor gives State agents licence to treat persons in a way that reinforces the status and feelings associated with poverty. The prohibition of degrading treatment instead requires States not to treaty persons living in poverty as having lesser worth than others, particularly by not reinforcing, aggravating or exploiting the specific vulnerabilities that poverty entails.
C. Prevalence of Torture of Persons Living in Poverty
Several sources emphasise that persons living in poverty are at particular risk of, and are frequently subjected to torture.Footnote 148 However, it is notoriously difficult to establish the extent of torture practices and widely acknowledged that torture is under-reported.Footnote 149 In the absence of reliable statistics or sufficiently specific scales, the prevalence and forms of torture of persons living in poverty must be deduced from a variety of sources. These sources include victim testimonies, statements of witnesses and perpetrators of such practices, and further evidence collected by those working in the field.Footnote 150
Notwithstanding this wealth of information, there are several limitations and challenges when considering the utility of available sources. Human rights reports have addressed torture of persons living in poverty, albeit largely incidentally. UN bodies have not developed a coherent methodology of documenting or reporting relevant forms of torture. The Inter-American Commission has addressed the nexus between poverty and human rights in a major thematic report but only made passing reference to torture.Footnote 151 The utility of torture-related jurisprudence is diminished by the practice common to several bodies of not focusing on the socio-economic profile of complainants. Even where the facts suggest that there is a correlation between the torture and the socio-economic background of a person, a focus on the nature and purpose of the ill-treatment, rather than its victims, frequently means that reported cases lack the requisite detail to draw out useful conclusions.
The most valuable sources on torture of persons living in poverty are research reports, several of which resulted from NGO-led projects. OMCT's 2006 report found a strong correlation between the Hathaway torture scale and socio-economic variables, based on series of detailed country studies.Footnote 152 Subsequent OMCT shadow reports provided evidence on the link between poverty and torture in Brazil, Kenya, the Philippines and Uzbekistan.Footnote 153 Over the last decade, the AHRC has published several reports on the torture of persons living in poverty, particularly in Sri Lanka.Footnote 154 Amnesty International, Human Rights Watch and other human rights organisations have documented the torture of specific groups whose members typically live in poverty, such as children living on the street, drug users, and street traders.Footnote 155 This includes the gendered dimension of torture, such as of sex workers in LebanonFootnote 156 and alcohol brewers and tea sellers in Sudan.Footnote 157
Carver and Handley's research on the effectiveness of torture prevention methods, commissioned by the NGO Association for the Prevention of Torture, included several country studies which found that persons living in poverty have been disproportionately targeted by law enforcement agencies.Footnote 158 Further empirical research has produced evidence of similar practices in countries such as Kenya, Nepal and Bangladesh,Footnote 159 South Africa,Footnote 160 and, in the context of marginalisation and political opposition, in Papua, Indonesia.Footnote 161
However, NGOs are seen to have under-reported poverty-related torture due to strategic priorities, such as a focus on political and conflict-related torture, and several structural factors. Jensen et al. argue that urban location, class background and modus operandi of NGOs are important factors. Based on empirical research in Kenya, Bangladesh and Nepal, they found that NGOs treat torture as extraordinary events which privilege a focus on political torture, are physically and mentally distant from low-income neighbourhoods, and focus on places of detention rather than the street. They are predisposed towards prosecution and reparation rather than protection, which is often a priority for persons living in poverty, who may also not fit into NGO assumptions about what it means to be a ‘good victim’.Footnote 162 These perceptions and resulting approaches may be fostered and reinforced by international actors, including donors and partner NGOs, who often play an influential role in setting priorities. These practices contribute to perpetuating, even if inadvertently, existing socio-economic marginalisation.
Another factor in the limited documentation and reporting of such torture is persons living in poverty themselves. Their lack of standing, influence and agency is apt to translate into vicious circles that reinforce the powerlessness that torture inscribes. There are also practical considerations. In addition to such factors as a lack of connections with influential persons, including access to NGOs or the media, persons living in poverty will often not be in a position where complaining or going public is a viable option. Their social standing may be such that their plight, even where they allege torture, engenders little sympathy.Footnote 163 The fact that they are typically powerless in essentially violent power relationships with officials or those close to them equates to a systemic lack of protection, which is often compounded by dysfunctional justice systems. Limiting visibility is in these circumstances a self-preservation strategy, which explains the reluctance to pursue cases further and have them documented.Footnote 164
D. An Anatomy of Torture of Persons Living in Poverty
The scale and nature of torture of persons living in poverty varies considerably between countries, and within countries.Footnote 165 It also varies in terms of disproportionately affecting certain groups within this broader category. Developing an understanding of relevant practices therefore requires a contextual approach based on an analysis of the specific situation. Nonetheless, there are some common patterns that allow generic findings to be drawn out concerning the circumstances, profile of victims, modalities of torture, and their consequences and responses. The following account focuses on policing and criminal justice as routine setting for forms of violence that involve public authorities.Footnote 166
A distinctive feature of relevant practices is the prevalence of various forms of ill-treatment outside the detention context. Many persons living in poverty are highly visible. Living on the street is often criminalised which provides the authorities with considerable scope to harass or ill-treat persons, including children,Footnote 167 in the form of largely arbitrary policing.Footnote 168 Certain occupations, such as street traders, sex workers, or others working in the informal economy face criminalisation in several countries, or are subject to police discretion on public order grounds.Footnote 169
Policing ostensibly aimed at repressing conduct deemed worthy of criminal sanction or suppression has a disproportionate impact on persons engaging in these occupations.Footnote 170 Police and other agencies in several countries are known to extort money or demand sexual acts, which amount to a form of ill-treatment, from persons living and working on the street, in exchange for favours, including not pursuing possible charges or releasing an arrested person. Ill-treatment is used to enforce demands made or punish resistance.Footnote 171 While economically marginalised persons command limited resources, they provide a lucrative source of steady income or services, such as sex, with limited attendant risk of adverse repercussions for those engaging in extortionate practices. Another feature of corrupt practices is police torture to enforce the interests of powerful private actors, including politicians, such as in the context of slum clearances, development projects, violent removal of homeless persons and children from the street, or the settling of disputes.Footnote 172 For persons living in poverty, public authorities, particularly the police, often represent an ongoing threat, forcing them to navigate what are at best ambivalent and typically violent relationships with law enforcement agencies.Footnote 173
They are also at a higher risk of arrest, detention and incarceration due to discriminatory law enforcement practices. A number of studies demonstrate a clear link between social status, especially level of income, and intersecting factors, such as race, on the one hand, and the scale of arrest, detention and imprisonment of members of relevant groups on the other.Footnote 174 In many systems, investigators primarily rely on confessions, which increases the likelihood that persons from a marginalised background are forced to confess to a crime.Footnote 175 Law enforcement agents operating on the basis of such profiling and framing do so for good reason; there is often institutional, political and public support, and there is limited risk of adverse publicity or legal action taken because the targets lack connections, resources and/or trust in the system. An example is the arrest, detention and ill-treatment of poor drug users.Footnote 176 The police may also use torture as a form of instant punishment in dysfunctional criminal justice systems. Notably, Wahl found that Indian police officers distinguished between the torture of innocent persons, which was deemed unacceptable, and the punishment of ‘criminals’, which they considered morally justified.Footnote 177
Torture of persons living in poverty frequently has specific geographical and gendered dimensions. In urban settings, young males living in poor neighbourhoods are often liable to being framed for certain crimes, as they are susceptible to regular raids and profiling.Footnote 178 They are also at risk of torture where their conduct, particularly defiance, is perceived to challenge police authority.Footnote 179 Where children are arrested, their mothers may be confronted with a choice of paying for their release and/or being subjected to sexual violence, or facing the alternative of the continued detention if not ill-treatment of their sons.Footnote 180 In detention, persons who lack the requisite means are often exposed to overcrowding and the worst detention conditions, and may not be able to secure protection against abuse by other inmates, including sexual violence.Footnote 181 In rural areas, it is particularly members of marginalised communities who are at risk of torture.Footnote 182 Members of social movements or protesters against policies or projects detrimental to persons living in poverty have also been subjected to torture.Footnote 183
Persons living in poverty typically lack the means to afford access to a lawyer or bail, and do not pursue legal avenues due to concerns over their safety and lack of trust in justice systems.Footnote 184 Human rights defenders who have defended torture victims in these circumstances have themselves been the subject of smear campaigns and harassment.Footnote 185 In addition, the filtering of cases and the modus operandi of NGOs and the media has resulted in the lack of legal support and publicity, which are critical factors in pursuing investigations.Footnote 186 The resulting impunity of perpetrators is an important factor in perpetuating powerlessness and insecurity and maintaining institutionalised abuse.
IV. A CONTEXTUAL APPROACH TO TORTURE OF PERSONS LIVING IN POVERTY
A. Conceptual Foundations of a Contextual Approach
A contextual approach of preventing and responding to torture of economically marginalised persons builds on a rich scholarship and practice of interpreting and implementing human rights. This includes calls to vernacularise human rights,Footnote 187 to recognise the specific characteristics of right-holders, including exposure to particular forms of discrimination and abuse,Footnote 188 and to be attentive to their lived experiences, including their rights and agency,Footnote 189 and the role of systemic factors, material structures and power relations.Footnote 190 Drawing on these strands, a contextual approach is characterised by being situational, relational and structural. It is informed by how the specific characteristics of a person are situated in and impacted by relationships that result in enhanced exposure to abuse of power, taking into consideration wider structural factors. Its aim of advancing both protection and the effective realisation of rights requires that the rights of persons living in poverty and their experiences in specific contexts are fully taken into consideration when interpreting and implementing the prohibition.
The Special Rapporteur on Torture and the SPT have referred to structural factors such as power asymmetry, inequality and socioeconomic marginalisation in their examination of what causes an enhanced risk of torture.Footnote 191 However, the reference to structural causes often remains formulaic in the absence of any in-depth engagement with the wider literature in relevant disciplinary fields. Engagement with notions such as State crime,Footnote 192 social control of crime,Footnote 193 failing criminal justice systemsFootnote 194 and structural violenceFootnote 195 is an indispensable prerequisite for identifying causes, patterns and factors that can be used to inform States’ obligations and legal responses, as well as other policy interventions.
B. Heightened Obligation of States
The CAT has interpreted the Convention against Torture as imposing an obligation on States parties to protect marginalised persons at risk of torture.Footnote 196 The Special Rapporteur on Torture referred to this as a ‘heightened obligation to protect vulnerable persons from abuse’, and called on States to interpret the ‘torture protection framework’ with particular reference to human rights norms prohibiting discrimination and protecting vulnerable persons.Footnote 197 This interpretation builds on the principle that States need to take effective measures against and in response to torture. However, neither the Committee nor the Special Rapporteur have specified the nature of such an obligation in respect of persons living in poverty.
A heightened obligation to protect applies in respect of all persons living in extreme poverty who must be considered vulnerable in all circumstances on account of the lack of means, capabilities and, typically, inferior social status. It equally applies to members of certain groups, eg children in street situations, and occupations, such as street traders and sex workers. Considering the nexus between discrimination and torture, the same rationale applies where members of a group are known to have been disadvantaged and/or subjected to stigma and stereotyping that enhances vulnerability. The heightened obligation needs to be interpreted contextually, taking into consideration other relevant factors, such as age, gender, or race, thereby making it intersectional where applicable. The obligation requires States to take specific measures designed to protect members of a group, as recognised in the Guiding Principles.Footnote 198 States must also consider the impact of detrimental policies, engrained patterns, and structural factors, particularly discriminatory practices that enhance vulnerability, on the implementation of specific obligations arising under the prohibition. The heightened obligation therefore has a potentially broad, cross-cutting dimension that significantly enhances States’ obligations in respect of persons living in poverty.
1. Preventive measures
Article 2(1) of the Convention against Torture stipulates a far-reaching obligation for States parties to take effective measures to prevent torture. The CAT's General Comment No 2 implies an obligation to consider heightened exposure to torture on account of discrimination. While ‘the Committee's understanding of … effective measures [is] in a process of continual evolution’,Footnote 199 and hence open to contextual interpretation, it has not provided further guidance tailored to the situation of persons living in poverty. The following analysis focuses primarily on what measures States ought to take in their criminal justice systems as a priority area of concern.
Criminalisation of living on the streets or occupations and activities frequently associated with poverty enhances the risk for those concerned of being exposed to various forms of corruption and ill-treatment. The Guiding Principles call on States to ‘[a]ssess and address any disproportionate effect of criminal sanctions and incarceration proceedings on persons living in poverty’ and decriminalise what it refers to ‘life-sustaining activities in public places’.Footnote 200 The Principles on the Decriminalisation of Petty Offences in Africa counsel that enforcement of laws criminalising petty offences ‘perpetuates the stigmatisation of poverty by mandating a criminal-justice response to what are socio-economic and sustainable development issues’,Footnote 201 and draw the link to resulting overcrowding in detention.Footnote 202 Both of these instruments provide important guidance on the interpretation of States’ obligations to take effective preventive measures. Consequently, States must carefully consider to what extent continued criminalisation enhances the risk of torture, and what measures ought to be taken to minimise any such risk.
Criminalisation is closely linked to the widespread recourse to pretrial detention. Several human rights bodies have addressed the link between excessive pretrial detention and a heightened risk of torture, as well as ill-treatment on account of poor detention conditions, particularly overcrowding.Footnote 203 Its prevalence has been attributed to systemic failings of criminal justice systems, lack of safeguards and a culture of impunity.Footnote 204 The SPT has emphasised the connection between poverty, discrimination and prolonged pretrial detention.Footnote 205 It has urged States to consider alternatives to pretrial detention, an obligation that already flows from the prohibition of arbitrary deprivation of liberty.Footnote 206 Decriminalisation and reduction of pretrial detention therefore constitute crucial systemic measures to prevent torture in these circumstances.
In order to be effective, the generic framework of preventive measures must be tailored to the situation of persons living in poverty. Carver and Handley found that safeguards in the initial phase following arrest, monitoring mechanisms, and prosecutions have been the most effective measures in preventing torture.Footnote 207 These measures, while undoubtedly important, may be of limited utility for persons living in poverty who may lack the trust in the system, information and financial means to exercise their rights. Human rights bodies have repeatedly stressed the importance of legal aid to guarantee effective access to a lawyer, especially during the initial phase following arrest and detention.Footnote 208 Further, the conditions of detention and the nature of treatment of detainees should not be contingent on payment.Footnote 209 In addition, strict compliance with the exclusionary rule set out in Article 15 of the Convention is critical as economically marginalised persons are typically at a higher risk of being forced to confess.Footnote 210
The SPT, in setting out its concept of prevention, specified ‘that attention also be paid to the whole range of other factors relevant to the experience and treatment of persons deprived of their liberty and which by their very nature will be context specific’.Footnote 211 Its approach to preventive visits is that they ‘should be carefully prepared in advance taking into account all relevant factors … as well as the practical contexts in which they operate’.Footnote 212 It entails that monitoring bodies develop a detailed understanding of how poverty affects the situation of individuals in detention settings, and include relevant factors in their visiting methodology and reporting.Footnote 213
Impunity for torture is a systemic problem worldwide, which is particularly pronounced for persons living in poverty.Footnote 214 Combating such impunity requires criminalisation of torture in conformity with Article 4 of the Convention, with the abuse of heightened vulnerability constituting an aggravating factor.Footnote 215 Complaints procedures and investigations must be independent, with personnel involved therein trained in recognising and addressing issues and risks arising from vulnerabilities, and accessible to persons living in poverty. This entails that complainants enjoy adequate protection, with threats, harassment or other such misconduct subject to adequate punishments, particularly where they exploit vulnerabilities. Officials should be required to report any risk of torture they are aware of and engage with individuals and members of the community concerned to instil confidence in the measures taken.Footnote 216 The collection of data showing how many persons from which background, including socio-economic status, have brought complaints of torture, with which outcome, is an important systemic measure enabling States to assess and act on the effectiveness of complaints procedures and investigations.Footnote 217
The close connection between corruption and torture is increasingly acknowledged. Corruption not only exposes individuals to the risk of coercive practices but also frustrates the effective exercise of rights where it undermines the functioning of criminal justice systems. The Special Rapporteur on Torture usefully called on States to break the link between corruption and torture, including by taking ‘proactive efforts to ensure adequate funding, training and equipping of public services and institutions’.Footnote 218 States must therefore make combating corruption an integral part of torture prevention measures and include corruption in the mandate of monitoring mechanisms and the scope of investigations into torture where appropriate.Footnote 219
The provision of training on the prohibitionFootnote 220 has to be effective and include a focus on vulnerability and corruption.Footnote 221 It has to be aimed at inculcating an understanding of how persons living in poverty are at an enhanced risk of torture and experience difficulties in exercising their rights, and what measures officials and other persons need to take to discharge the State's heightened obligation. Similarly, the systematic review of rules, methods and practices in the detention contextFootnote 222 must include a focus on how to address vulnerabilities, including poverty, with a view to minimising the risk of torture. The obligation to take effective preventive measures entails that States take broader reforms in case of systemic failings. Empirical research has demonstrated that successful police reforms create a structure and instil an ethos that enhances the likelihood of effectively implementing the State's obligations in the day-to-day work of the police, or other law enforcement agencies.Footnote 223
2. Reparation
The right to an effective remedy and reparation combines justice for victims with a preventive function.Footnote 224 The Special Rapporteur on Extreme Poverty and Human Rights has highlighted the crucial role of access to justice in ‘tackling the root causes of poverty, exclusion and vulnerability’.Footnote 225 He identified a series of obstacles faced by persons living in poverty, including in respect of physical access, fees and costs, corruption, and legal representation.Footnote 226 Effectively addressing these obstacles is a prerequisite for an effective remedy for torture.Footnote 227 Adopting a victim-centred approach is particularly salient in this context. If reparation is to serve its broader function of a public recognition of the equal worth of members of a community, restoration of civic trust and solidarity with victims, being recognised as a right-holder and subject become crucial components of the reparative process.Footnote 228
Each of the recognised forms of reparation provides considerable scope to take into consideration specific vulnerabilities and the impact of torture. Compensation attentive to the special circumstances of persons living in poverty has utilised the national minimum wage for casual workers to calculate pecuniary damages and award moral, non-pecuniary damages for the suffering resulting from the abuse of a vulnerable position.Footnote 229 The award of exemplary damages is particularly appropriate in such cases to signal that torture comes at a price, thereby reversing the very logic that persons living in poverty can be ill-treated with impunity.Footnote 230 Rehabilitation is to be tailored to the situation of the individual victim, including lack of means and other poverty-related factors impeding access to relevant services, and may have a collective dimension where members of a group who have been targeted suffer trauma and other negative consequences. The element of satisfaction encompasses apologies, accountability and symbolic measures, all of which can have a discrete reparative function for victims of torture living in poverty. Ensuring criminal accountability is as important as it is difficult to break the climate of impunity by adequately investigating torture and bringing its perpetrators to justice. Where torture is systemic, investigations must equally seek to establish causes and patterns of ill-treatment and institutional responsibility.
The CAT emphasised that ‘guarantees of non-repetition offer important potential for the transformation of social relations that may be the underlying causes of violence’.Footnote 231 Legislative reforms, such as decriminalisation, measures to reduce pretrial detention, and the provision of legal aid, institutional reforms of dysfunctional criminal justice systems and training on the nexus between poverty and torture will often be essential. Beyond this, a careful analysis is required to tackle underlying causes of torture, including material conditions, socio-economic logics in highly unequal societies, and public discourses. Sandra Fredman's transformative approach to substantive equality as consisting of redressing disadvantage; redressing stigma, stereotyping, and humiliation; the participative dimension: social inclusion and political voice; and accommodating difference and structural change provides a useful reference point in devising reparation measures aimed at overcoming discrimination.Footnote 232 Transformative reparation measures aimed at tackling underlying structures are particularly important in the context of reparation programmes forming part of transitional justice processes. As McGregor highlighted, such programmes have constituted missed opportunities to address systemic issues, which includes discrimination and poverty.Footnote 233
3. The Guiding Principles and torture prevention strategies
Torture of persons living in poverty is conditioned by socio-economic structures and practices characterised by and producing discrimination and exclusion. An effective prevention strategy must seek to redress the power disparity resulting from these structures. The Guiding Principles offer agreed upon principles and tailored standards that can be used both to identify specific measures to be taken to prevent torture of persons living in povertyFootnote 234 and to implement complementary policies and practices. The heightened obligation requires States to take vulnerability, here as a result of poverty, into consideration when designing and implementing effective human rights policies and preventive measures. Procedurally, the Guiding Principles require States to respect persons living in poverty as right-holders and to ensure that they are able to participate in decision-making processes. The importance of such participation has been recognised in the human-rights based approach to development, in response to concerns over treating marginalised persons as passive beneficiaries rather than as rights-holders.Footnote 235 It is equally valid in respect of the prohibition, to ensure that persons living in poverty, their representatives, and organisations genuinely advocating on their behalf have an active role in policymaking processes and in the design and implementation of relevant measures, such as being consulted on police reforms. Substantively, the Guiding Principles require States to respect dignity and equality and to have a particular focus on children. Where persons are known to be at particular risk of any form of ill-treatment because of their disadvantaged status in society, States must take measures that redress such disadvantage. Several instruments aimed at eliminating discrimination and Fredman's transformative approach to equality provide useful guidance on how to tackle systemic disadvantage.
This contextual interpretation links poverty eradication with torture prevention. States have already assumed a series of legal obligations which, if adequately implemented, are expected to reduce poverty, including the right to equality, economic, social and cultural rights, the right to democratic participation, and the right to development.Footnote 236 These rights are integral components of broader prevention strategies to break the connection between poverty and torture. Bodies tasked with monitoring the implementation of these rights can play an important role in highlighting this relationship where such evidence is provided to them, or is otherwise apparent, which includes the detrimental impact of torture on economic, social and cultural rights.
Requiring States to develop and implement coherent and integrated policies on combating torture, corruption, and poverty eradication are important measures in a wider, systemic approach to torture prevention.Footnote 237 As higher levels of income and equality within and across society are recognised as indicators of greater respect for human rights, it is critical that States and international organisations effectively address the structures and interests that produce and sustain poverty and inequality, and tolerate if not encourage recourse to torture to preserve and serve powerful interests.
C. Developing a Contextual Approach and Engaging Persons Living in Poverty
A contextual approach to the prohibition represents a challenge and opportunity for actors working on torture prevention. For States and national human rights institutions, developing a situational understanding of poverty and torture requires collecting relevant data. It also entails opening channels of communication and fora to engage with persons living in poverty and those who represent them or advocate on their behalf, to inform policymaking and reforms addressing the causes, practice and impact of torture. At the international level, the SPT has already developed a practice of focusing on and seeking to address poverty and other vulnerabilities. The Special Rapporteur on Torture has recently developed a closer focus on contextual factors, such as corruption, and their relation to torture. There is considerable scope for the CAT and other bodies to pay closer attention to the torture of persons living in poverty. Requesting information collected in a human rights compliant manner about the treatment of persons living on the street, the criminalisation of petty offences, the scale and demography of pretrial detention and prison populations, disaggregated data on torture-related complaints and their outcome, the availability of legal aid, corruption, modalities for monitoring of vulnerable groups in detention, and their access to justice ought to be standard issues raised in monitoring States parties’ compliance. Building on its General Comment No 2 and its 2018 one-day session on vulnerable groups and torture, developing a thematic general comment would provide the Committee with the opportunity to set out the obligation of States parties in respect of vulnerable persons, particularly with respect to poverty.
For NGOs working on torture, a useful starting point would be an audit to identify the extent to which, and how an organisation has interacted with persons living in poverty, and how this interaction is reflected in their work and publications. Such audit should heed the findings of the research by Jensen and others in terms of how organisational location, priorities, modus operandi and biases, including class dynamics, impact on their work.Footnote 238 Donor policies and funding priorities are also material factors meriting further scrutiny in this context. Legal interventions, documentation, monitoring, and advocacy ought to focus on, and integrate the role of poverty, and other characteristics where applicable. This entails, for example, drawing attention to the discriminatory dimension of a case, and requesting forms of reparation that address the same.
An overly formalistic and legalistic approach to the torture of persons living in poverty bears the risk of replicating asymmetric power relationships and of bringing about limited change. The Centre for the Study of Violence and Reconciliation and Dignity have, in the South African context, developed ‘a community work model for addressing torture’ influenced by social action theory and the ecological model.Footnote 239 At its core, it views systems as interconnected and aims at mobilising ‘community members to become “active citizens”’.Footnote 240 Its aim is to empower and connect people to effect change in their communities, including by identifying and reducing risk factors, providing support to victims, and translating experiences and interventions into advocacy efforts.Footnote 241 Such approaches are exemplary, reflecting a broader call to listen, to have a serious dialogue and to be attentive to the lived experiences of persons who have been excluded, silenced and frequently exposed to human rights violations.Footnote 242 They have enormous transformative potential but require sustained and challenging engagement to tackle what are typically deep-seated structural problems resulting in violent encounters.
V. Conclusion
Persons living in poverty, although bearing the brunt of routine, institutionalised torture practices, remain at the margins of prevention efforts. They still frequently find themselves subsumed under the rubric of another group defined with reference to other characteristics such as age or gender. There is no consistent practice of fully taking into consideration their situation and experiences, and to translate them into tailored, heightened obligations of States to prevent torture and provide justice. Human rights bodies and defenders’ growing awareness of the nexus between poverty and torture is an overdue development that calls for a concerted effort to have it reflected in the interpretation of the prohibition, and to design and implement targeted preventive measures. Legal interventions that contextualise and broaden the conventional torture prevention framework constitute an important part of a wider strategy to combat torture. At a time of growing inequality, populist vilification of marginalised persons and anxiety, transforming what are often deeply entrenched patterns of discrimination, exclusion and violent, abusive power relationships constitutes a major challenge.
In addition to prioritising reforms in the administration of justice, particularly of legislation and institutions such as law enforcement agencies, the larger political struggle requires mobilisation and participation to counter disempowerment and dehumanisation. Notions of dignity as a levelling up of status,Footnote 243 or of treating individuals as equals on account of their social identity and right to be protected from inferiorising treatment and crueltyFootnote 244 are pertinent here. Yet, realising them will require profound material changes in relation to how contemporary societies produce stratification maintained by degrees of violence. Redressing national and international inequality through tailored legal approaches combined with a fundamental political, economic and societal transformation is therefore indispensable when seeking to reduce if not altogether eliminate the epidemic of torture that all too often forms an integral threat, if not part of the lives of persons living in poverty.
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