Analysis: Is forced feeding hunger striking administratively detained prisoners legal?

With the Knesset close to passing law permitting force-feeding of hunger-striking prisoners, ethical questions arise.

By YONAH JEREMY BOB
Palestinians protest in support of hunger striker 370 (photo credit: REUTERS)
Palestinians protest in support of hunger striker 370
(photo credit: REUTERS)
The Knesset is close to passing a law explicitly permitting forced feeding hunger striking Palestinian prisoners, including a sizable number being administratively detained.
A group of dozens of Palestinian prisoners have been on hunger strike for around 50 days protesting administrative detention and other controversial practices of the Israel Prison Service.
Will the passage of the law make the practice legal and ethical? Domestically the law will make the practice legal in the short-term, but in the long-term, a High Court challenge is inevitable and the majority of indicators on international law are against forced feeding - though by no means is the debate one-sided.
On the anti side stands foremost not only the World Medical Association (dating back to the 1991 Malta Declaration and before) and the main UN officials on the issue, but also the Israel Medical Association (IMA).
Dr. Avinoam Reches, former chairman of the IMA's ethics committee and currently chairman of its disciplinary board went as far as to say that forced feeding is torture.
Many human rights NGOs, including the Public Committee Against Torture in Israel (PCATI) are also vehemently oppose forced feeding.
PCATI's Executive Director Dr. Ishai Menuchin and Reches both said that forced feeding could cause various bodily ruptures and lead to serious harm to the "patient." According to Physicians for Human Rights for Israel, five Palestinian prisoners died from forced feeding between the 1970s, 1980s and up until 1992.
Some say that the absence of forced feeding between 1992 and now was a response to those deaths and that, counter-intuitively, the state's push for forced feeding after so much time has passed means that it is willing to test the world's reaction by letting some hunger strikers die.
Reches added that it is inconceivable that there is a law against forced feeding geese, but that forced feeding humans is permitted and said he expected that no doctor outside of prison doctors would acquiesce to forced feeding.
On the other hand, the US famously forced fed administratively detained prisoners in Guantanamo Bay, Cuba, including amid major controversy in 2013.
Though the US Supreme Court has not ruled explicitly on the issue, many scholars say that it would likely support prisons forced feeding prisoners on the grounds that prisoners' rights are inherently more limited than civilians.
Following that logic, the vast majority of US courts have held that prisons have a need to maintain order by preventing suicide.
This would apply even more to group organized hunger striking, which could lead to group suicide, thereby overcoming the individual's right to bodily integrity and to refuse food.
The US government has also defended forced feeding as a humane, and thus legal, alternative to permitting detainees to starve themselves. Israel's new proposed law justifies itself on similar grounds.
Even the US picture though is more complicated as a few states like California significantly restrict forced feeding and PCATI said that the American Medical Association opposes forced feeding.
Besides the US courts, forced feeding finds some defense from the European Court of Human Rights which has alternatively permitted (Switzerland) and prohibited (Ukraine and Moldova) forced feeding in cases in 2005, 2007 and 2013.
Where the European Court prohibited forced feeding, it still listed factors which could permit forced feeding, such as avoiding unnecessary suffering and aggression to the patient and medical necessity for saving the patient's life.
Greece, Bahrain, Nepal and China have also reportedly engaged in forced feeding and other countries may have, though it is not always easy to learn of such events.
In terms of international conventions, there is also a dispute.
Some scholars point out that no international conventions, often viewed as the definitive word on international law, explicitly prohibit forced feeding prisoners, let alone label it torture.
But Menuchin responded that international conventions on torture prohibiting causing severe pain clearly apply to forced feeding, a sentiment that Reches agreed with in invoking a physician's first obligation to "do no harm" and explicit prohibitions by the WMA.
In an interesting twist, though the IMA opposes forced feeding, Reches said that while some members might also oppose administrative detention, it was quite possible that many of its members had little or no sympathy for administratively detained Palestinian suspected terrorists, nor would they cry if they starved.
In other words, their refusal to forced feed was not at all a show of general political support, but a specific medical professional decision.
Other than the doctors though, it is hard to see how most parties' views of the overall debate on the administrative detention issue does not inform their views on the forced feeding issue.
Most countries and human rights groups oppose not only forced feeding, but also administrative detention, in which suspects are indefinitely held without a standard trial, but do have judicial proceedings (though they are significantly modified and often only the judge gets to review the evidence, not the defense.) They say that it violates all basic notions of the rule of law, a fair trial and due process and can be seriously abused.
But a number of Western countries, including Canada and various European countries, had periods of using variations of such detention particularly in the years after September 11, 2001.
The US, which has used it for between 100 to a few hundred prisoners in Guantanamo, and Israel, are on a short list of democratic countries to use it in large volume over a longer period.
Israel defends administrative detention as necessary where it has surefire intelligence that a suspect is a dangerous terrorist, has perpetrated terror or will inevitably perpetrate terror in the future, but cannot reveal the intelligence in a regular court or that revealing the intelligence could expose sources in the field to danger.
Those opposing administrative detention partially disqualify the US example of Guantanamo forced feeding saying that such US actions only prove the US has moved away from international law, not that either practice is legal.
Outside of terror, a larger group of countries, including many Western countries, have used administrative detention in dealing with large illegal migrant problems and Mexico and Malysia have used it against organized crime in times of crisis.
But detention periods have been far shorter, such as around 60 days – as opposed to Israeli detention which can go on for several years or more.
Returning to Reches, he stated that the reason that all non-IPS doctors would refuse to forced feed was that even if it was domestically legal, it was prohibited by ethics, which are a higher calling.
But would it be better if Israel let the prisoners starve? Or if Israel "caved in" and released prisoners from administrative detention, how would it prevent those prisoners who are terrorists from undertaking future acts of terror? In this debate there are no easy answers and far from ending the debate, the new proposed law is likely to spark fiercer battles in the future, including, if and when, a prisoner finally dies.
If it happens, that outcome, which some say the Israel Security Agency (Shin Bet) may even be in a way hoping for to break the back of the hunger striking trend, would be the moment of truth on both the forced feeding and administrative detention issues.


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