Starvation is a terrible way to die.
Yet all around the world - from Guantánamo to Egypt to Russia and to Israel - hundreds of individuals are desperate enough to starve themselves to death. For security detainees - who are typically detained based on secret evidence for indefinite periods of time - a hunger strike may be the only way to maintain a sense of autonomy and attract attention to their plight. To deal with growing numbers of detainees who resort to hunger strikes, the U.S., Israel and other nations have adopted practices of force-feeding. While this measure is not new to Guantánamo Bay (a U.S. judge recently approved the force-feeding of a detainee who has been held for 12 years without trial), a few days ago the Israeli Parliament introduced a new law approving force-feeding of detainees. While advocates for the new law argue it is intended to preserve the lives and well-being of the detainees, force-feeding deeply harms detainees' well-being: it disrespects their personal dignity; it undermines what is left of their sense of autonomy and free will; and it robs them of their most intimate and basic human capacities.
The new Israeli law exemplifies all these darker aspects of force-feeding hunger-strikers: it authorizes courts to approve the force-feeding of detainees whose life are in danger yet refuse sustenance, if all other attempts to persuade them to eat or drink have failed. This means that force-feeding will be approved when it is absolutely clear that the detainee is perfectly sane, and has conscientiously refused food or drink. To make this injury worse, the law authorizes prison guards to use force to effectuate court-approved force-feedings. Hence, in addition to permitting the physical and mental injuries associated with force-feeding, the law legalizes the use of force to compel medical "treatment" of mentally healthy individuals who firmly refuse such treatment.
Force-feeding is not about respecting the well-being of detainees. It is rather about thwarting external support for such efforts at resistance. The new Israeli law elucidates this point by emphasizing that hunger strikes are used to promote political goals, and can therefore trigger riots and disruptions to public order by those who support the detainee's struggle. The law obligates the court to consider these potential disruptions, and to approve force-feeding of a detainee if her hunger strike might drive others to protest. Consequently, this measure violates two fundamental human rights principles: that political speech should be protected and that each person shall be punished for her own sin.
The force-feeding law further allows courts to admit evidence in camera, outside the presence of the detainee or her counsel, and authorizes the Court to deviate from the general rules of evidence. As these individuals were detained based on secret evidence, frustrating their struggle through the use of even more secret evidence, underscores the evidentiary unreliability and injustice of the proceedings. Moreover, if decisions on force-feeding were truly about the health and well-being of the detainees, there would be no need to allow secret evidence, as their health conditions are within their knowledge.
In designing this control mechanism, the Israeli legislators acknowledged that many doctors and hospitals might hesitate to participate in this harmful procedure, which the Israel Medical Association defines as torture. To overcome this obstacle, the new law includes a defenses section, which grants immunity to doctors and hospitals that follow court orders to force-feed a detainee. This reveals that even in the eyes of its advocates, force-feeding violates basic human rights and international conventions, as well as medical ethics and the sanctity of the physician-patient relationship.
An effective alternative to force-feeding exists: the adoption of a robust and independent judicial review of preventive detentions, and significant limitations on their use. Effective judicial review will enable security detainees to challenge the legality of their captivity and provide due process protections and oversight over this contested executive authority. In addition, lawmakers could have placed legal limitations on the arbitrariness of preventive detentions, including as to its maximum length. They could encourage criminal prosecutions, with all their attendant procedural protections, by adopting a "prosecute or release" policy. They could also have limited the use of secret intelligence evidence in detention proceedings. Unfortunately, rather than enhance procedural protections, governments prefer to insert gastric tubes into people's noses while they are strapped into restraint chairs.
There is a direct link between policies of preventive detentions and force-feeding detainees: the de-individuation and dehumanization of suspected terrorists. In the assembly line that is the security detention process, individuals are stripped of their unique personal characteristics and courts become the arbiters of security considerations. In a detention system in which judicial review is non-existent or ineffective, alternative protests such as hunger strikes signal individuals' pursuit of autonomy and identity. Force-feeding practices robs detainees of this last human capacity and completes the process of their dehumanization and de-individuation. Instead of dying of hunger - at their own will - the state is empowered to conveniently force them to rot, quietly, in their prison cells, until they die of 'natural' causes.
In essence, this new Israeli force-feeding law (which follows U.S. practices) seeks to silence the only mean of protest security detainees currently have. Rather than dealing with the problems raised by a policy of massive preventive detentions, it adds insult to injury: it violates basic human rights simply to allow other human rights violations persist without struggle or social outcry.