Does Halacha permit the force-feeding of prisoners?
Ask the rabbi.
By SHLOMO BRODYA woman holds a Palestinian flag as she attends a protest in support of a hunger-striking Palestinian prisoner in 2015 in Ashkelon(photo credit: AMIR COHEN - REUTERS)
In the end of May, Palestinian security prisoners in Israeli jails ended a 40-day hunger strike, one of several such strikes that have occurred in past years. The strike was ostensibly about improving their conditions in jail, even as many analysts saw this as a power play of Marwan Barghouti and an attempt to embarrass the Israeli government in the international media.The prospects of Palestinian prisoners dying from their protest bore measures of condemnation by foreign leaders and threats of revenge from Palestinian Authority President Mahmoud Abbas, thereby turning this strike into a potential national security threat.As in past strikes, the government declared that it was open to force-feeding the prisoners, in consonance with a 2015 law that allows for such actions to prevent the death of these convicts, even as it does not require doctors to participate in such lifesaving treatment. (Fortunately, Israel was able to resolve the situation through other means, yet the issue will continue to remain relevant when the next hunger strike occurs.) As Jesse Lempel has documented, the law itself is not without controversy.The Israel Medical Association (IMA) asserted that it will not cooperate with the government to force-feed the prisoners, since this represents a violation of human autonomy and rights. This perspective is shared by the World Medical Association, which sees force-feeding as a form of torturous and inhumane treatment. British law similarly sees it as a prisoner’s right to starve himself to death.In contrast, the European Court of Human Rights has ruled that force-feeding is not degrading when deemed a therapeutic necessity. Such a sentiment has been affirmed by courts in France, Germany, the United States and, most importantly for our purposes, a 2016 decision of the Israeli Supreme Court. The Tzohar rabbinic organization and the Jewish law adviser of the Justice Ministry both submitted papers in principled support of the law, even as they asserted that its implementation must be strictly supervised.The basis for this halachic perspective is rooted in the notion that humans do not have autonomy over their bodies. As creatures specially created in the image of God, humans do not have the right to waive this ingrained dignity by mutilating their body. Accordingly, one is prohibited from harming himself.Moreover, if a person requests of a friend to cause him harm and promises him legal immunity, Jewish law nonetheless deems the friend liable. We assert that the person did not actually desire such actions that harm his self-interests, or that he simply does not have such power over his body to permit harmful actions against himself.Of course, there are times when a person is required to undergo bodily harm. This occurs, for example, when a person requires surgery or some other invasive treatment for the sake of his own health. This is not a case of self-harm, however, since the intent is therapeutic, not masochistic.Similarly, a person may, within reason, endanger his own body to help others, as in the case of jumping into a river to save someone from drowning. Once again, intent here is critical, as the goal is beneficent, and not to purposely harm oneself.Yet when the intent is harmful, society may intervene.Accordingly, Maimonides rules that if a person declares, “If I want to put myself in danger, what concern is it to others?” we may punish him in order to prevent such reckless behavior.For this reason, we take action to prevent people from committing suicide, even if they display absolutely no signs of mental illness.Accordingly, in the 18th century, Rabbi Jacob Emden asserted that when a patient refused a well-tested medical treatment that could heal him from his ailment, we may force him to be treated.A failure to do so violates the prohibition of “You shall not stand idly over a neighbor’s blood.” (This prohibition, as Rabbi Moshe Feinstein noted, would not necessarily apply in cases when the treatment would not have any significant healing impact, or if the treatment was experimental and might cause greater harm.) Accordingly, in cases of civil prisoners who refuse to eat, the government would be mandated to force-feed the criminals. From a humanitarian perspective, moreover, such action would be appropriate under circumstances of incarceration, when criminals lose certain civic rights while the government takes on certain responsibilities for their welfare.In the case of Palestinian security prisoners, however, an additional factor must be taken into consideration.Given the tense Israeli-Palestinian conflict, the death of a prisoner could explode into a major national-security situation in which Israelis and Palestinians alike would be killed. From a national-security perspective, the government is compelled to prevent such situations so as to protect its citizens from harm. Accordingly, even if one would (wrongly, in my opinion) equate force-feeding with a moderate form of torture, it remains unclear if that would preclude the government from taking such action to prevent further violence. Accordingly, the government was justified in passing this law, and the Supreme Court was correct in upholding this statute.The motivations of the IMA were understandable. Doctors should generally not be in the business of disrespecting the autonomy of their patients and using force to perform therapeutic services. Yet, as with many moral principles, there are exceptions, and in this case, the principle of preserving public safety should have overridden the IMA’s moral compunctions.■ The writer, author of A Guide to the Complex: Contemporary Halakhic Debates, directs the Tikvah Overseas Students Institute and is a presidential scholar at Bar-Ilan University Law School. Facebook.com/RabbiShlomoBrody
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