Force-Feeding Hunger Strikers is Wrong and Illegal No Matter What

 

CC via Wikimedia Commons

The context in which the force-feeding bill is passing through the Israeli Knesset is clear. Ziva Miral, a spokesperson from the Israeli Medical Association said that the practice “goes against the DNA of the doctors to force treatment on a patient…force-feeding is torture, and we can’t have doctors participating in torture.” The bill has also been roundly condemned by Israel’s National Council of Bioethics and Physicians for Human Rights-Israel as well as a number of domestic NGOs including the Public Committee Against Torture in Israel.

Israel’s international obligations are similarly well-defined. It is widely accepted that the additional protocols to the Geneva Conventions codified in 1977 prohibit force-feeding and the practice is quite clearly in contravention of various human rights standards. Regarding its occurrence at Guantanamo Bay, the UN released a statement declaring force-feeding “constitutes a flagrant violation of international human rights law and in itself constitutes a form of cruel, inhuman, and degrading treatment.”

All of this is unlikely to stop the passage of this bill. Israeli NGOs have little sway over the present government and the view that supranational political bodies and international law are the avowed enemies of the State of Israel has become the dominant sentiment among many politicians and right-wing activists. In consequence, much of the vocal opposition to force-feeding from both within and outside Israel will fall on deaf ears having been tarnished as the battle cries of those who seek to destroy Israel and whitewash the crimes of terrorists. It is therefore worth looking beyond the press releases and various treaties and look to the ideas that underpin force-feeding as a response to hunger strikes.

While there have been many clear-cut legal and moral arguments to the effect that force-feeding constitutes torture or its legal equivalent – “cruel, inhuman or degrading treatment”, less discussion has focused on the autonomy of the hunger strikers, both regarding their choice to fast and their right to bodily autonomy which would prevent force-feeding.

One of the foundations on which liberal democracies rest is John Stuart Mill’s harm principle, “the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant.” (On Liberty, 1859, Oxford University. pp. 21–22). Ronald Dworkin puts it slightly differently, in his remarkable work Justice for Hedgehogs, drawing a distinction between freedom and liberty. Freedom is simply the ability to act as one wishes, which society must constrain in order to be just and functional, while liberty stems from the assumption that the state must have equal concern for all. It is this that gives birth to our political rights in their broadest sense – the right to define a good life for one’s self. This all-encompassing right manifests itself in a range of legal human rights and the state can only infringe it in extremis.

One practical effect of these liberty rights is that we are entitled to do what we wish with our own bodies. This includes the right to do things which harm ourselves; we are therefore free to tattoo as much of our own body as we wish, play violent sports, or engage in sadomasochistic sex, all free from the interference of government. One’s body is sovereign, to worship or destroy as one sees fit.

This right is, of course, not inviolable (no rights are except freedom from torture); the state can in some circumstances violate ones bodily integrity. According to the European Convention of Human Rights and Fundamental Freedoms (ECHR), perhaps the only truly judicially enforceable human rights document, the right can be undermined only when the violation “is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.” These exceptions are not written with regards to the right to bodily autonomy per se, no autonomous right exists, they limit rights in which encompass the integrity of the body, for example: Americans’ First Amendment rights. The fact that no such independent right exists is not because it is not as important as the others, to the contrary, the right to do with one’s own body as one sees fit is so fundamental that all other rights stem from it.

The right to refuse food is apparent, the question remains whether the state would be allowed to force-feed in the circumstance at hand. It should be noted that the exceptions extracted above are not as wide as they first seem. According to the jurisprudence of the European Court of Human Rights, the government’s violation of the right must be reasonable and proportional, and while of course Israel is not bound by the ECHR, similar calculations are made regarding international human rights and they should similarly apply to the moral reckonings we, contributors to the public discourse, should be making. What then are Israel’s motives for force-feeding those in administrative detention?

In keeping with Israel’s traditional policy of refusing to negotiate with those they consider terrorists, Yoram Cohen, the head of Shin Bet, advised Netanyahu not to negotiate with the hunger strikers. Furthermore, there is the worry that if one of the hunger-strikers dies while in custody, tensions will be (further) heightened, setting off (yet another) cycle of violence. To my mind, these objectives to not justify the violation. There is no real national security argument to be made; it would be all but impossible to prove that violence would in fact be the result of a death in custody. In any event, Israel hardly seems worried that violence will be the result of any number of other abuses it commits. Indeed it is apparent that there is no justification “necessary in a democratic society” that Israel could give that would allow them to force-feed. The these prisoners are on hunger strikes because they have been detained indefinitely without charge – Israel cannot be allowed to deal with the fallout of its contempt for the rule of law by carrying out further human rights abuses.

Many feel that if a bill can be squeezed through the Knesset the sanctioned action must be valid. Hardly. If Israel will not take its international obligations or the counsel of its own doctors seriously, perhaps it should be reminded of another law which passed the Knesset, the Basic Law: Human Dignity and Liberty which mandates that “there shall be no violation of the life, body or dignity of any person.” These things are important, respecting the integrity of the individual is the very essence of a democracy and to disregard them so casually, as many Israeli lawmakers have done, is troubling in the extreme.

 

Michael Goldin just completed a law degree and will soon begin going for his master’s  at University College London.

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