Israel's High Court: Forced feeding of hunger-striking detainees is legal

‘Detainee’s right to make himself ill or near-death by refusing to eat is not the same as the autonomy of regular patient.’

September 11, 2016 22:21
2 minute read.
Hebron protest

A Hebron man demonstrates in solidarity with Palestinian prisoners on a hunger strike in protest at being held in administrative detention. (photo credit: MUSSA QAWASMA / REUTERS)

The High Court of Justice ruled Sunday that Israel’s law permitting the forced feeding of Palestinian hunger strikers is constitutional, rejecting multiple petition that sought to revoke the 2015 legislation, claiming it contradicts medical law, ethics and international law.

An endorsement by the three justice panel consisting of Supreme Court vice president Elyakim Rubinstein, Menachem Mazuz and Noam Sohlberg, ends the saga over the law, which was passed following years of fiery debates and two rounds of mass hunger strikes by Palestinian detainees – many of them in administrative detention – and despite vehement opposition from Israel’s medical association, the World Medical Association, the UN, Arab MKs, the Palestinian Authority and several NGOs.

Responding to all of the laws opponents, the High Court accepted the state’s arguments that even if forced-feeding violates the autonomy of a detainee, their autonomy is being violated to save their life, which is a greater value.

Furthermore, the High Court rejected the Israel Medical Association’s claim that the law violated the existing Patient’s Rights Law, noting that a detainee’s right to make himself ill or near-death by refusing to eat is not the same as the autonomy of a regular patient who decides to avoid heroic treatment to survive when he or she is sick from natural causes.

Also, whereas the High Court agreed that the World Medical Association, England, Canada and others oppose forced feeding, it stated that France, the US (depending on the state), Australia, Germany and Austria all permit it in some circumstances.

Homing in on the security aspects of the issue, the High Court said that if failing to force feed a detainee could lead to more hunger strikes and possibly disorder in the prison Palestinian areas, weighing those considerations into the law was valid.

The High Court added that the issue is still developing because the law has not actually been followed or used in the 13 months it has been in force despite a few instances in which doctors were directed to force feed detainees.

The Jerusalem Post reported exclusively in March that one barrier to the use of force feeding had been the High Court’s creation of a new response to administrative detention – suspending the administrative detention of a sick detainee. Once the detention is suspended, it is unclear whether the law can apply since, literally, it only applies to detainees.

It was unclear Sunday whether the High Court’s ruling resolved that ambiguity.

The law, which passed with 46 lawmakers in favor and 40 opposed in the 120-seat Knesset, can only be applied if it is approved by the attorney-general and a president of a district court, and a doctor determines that the hunger strike, if continued, would cause irreparable damage to the prisoner or that his life is in danger.

Israel has long been concerned that hunger strikes by Palestinians in its jails could end in death and trigger waves of protests in the West Bank and east Jerusalem.

Israel’s Medical Association, which considers force-feeding a form of torture and medically risky, urged thousands of Israeli doctors not to abide by the law even after it was passed, and continued to oppose it before the High Court.

Lahav Harkov contributed to this story.

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