Hunger strikes and the issue of artificial nutrition
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Behind the Headlines: Hunger strikes and the issue of artificial nutrition

  • 8/17/2015
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    Hunger strikes, particularly when politically motivated, pose a challenge to any democracy. Terrorists in Israeli custody periodically carry out hunger strikes, exploiting the publicity to generate pressure on Israeli authorities to release them.
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    Medical treatment for inmates in Israeli prisons Medical treatment for inmates in Israeli prisons Copyright: Israel Prisons Service
     
     
    Hunger strikes, particularly those undertaken for political reasons, pose a challenge to any democracy. On the one hand, governments have the responsibility to protect the life and health of those in their custody. On the other hand, they are reluctant to undermine an individual's decision to refuse food as a method of protest.

    Israel has faced this dilemma for several years now. Periodically, inmates in Israeli custody - particularly administrative detainees held on terrorism charges - choose to carry out hunger strikes, occasionally for extended periods. Their goal is not to end their lives, but rather to exploit their condition and the subsequent publicity they receive to generate pressure on Israeli authorities to release them, thereby facilitating their return to terrorist activities.

    During a hunger strike, the Israel Prisons Service and the Israeli Health Ministry take steps to ensure the safety and health of those prisoners or detainees who choose to strike. Those who choose not to eat are provided with suitable conditions and are given additional care and attention. All hunger strikers are provided with appropriate medical treatment and care which meet Israeli and international standards, and upon consent, they receive intravenous (IV) fluids, supplements, and vitamins.

    In addition, in accordance with the Ministry of Health's guidelines, every hunger striker, regardless of his/her medical condition, is transferred to a public hospital where, given his/her consent, he/she undergoes a series of medical examinations conducted by hospital doctors upon the commencement of the 29th day of his/her strike. Prisoners or detainees whose medical condition have deteriorated due to their hunger strike are then hospitalized for further medical treatment. Needless to say, the Israeli hospitals provide the strikers the highest level of medical care and treatment available.

    Additionally, it should be noted that all hunger strikers receive regular visits by the International Red Cross, as well as by personal attorneys and private physicians, when requested by the detainees in accordance with the law.

    The matter has again come to the public's awareness following the extended hunger strike of Muhammad Allan, a detainee from the Islamic Jihad terrorist organization. Allan, previously convicted of recruiting a suicide terrorist, is currently held in administrative detention for planning large-scale terrorist attacks with fellow Islamic Jihad terrorists.  

    The issue has gained particular attention due to a recent amendment to Israel's Prison Ordinance ("Preventing Damage from Hunger Strikes"), which aims to resolve the matter in a manner that balances a person's desire for autonomy over his/her body with the government's duty to safeguard the health of persons in its custody.

    For this reason, the amended law provides tools to the relevant authorities to cope with the complex situation by establishing a mechanism that allows for the administration of non-consensual medical treatment in certain and highly limited circumstances, and only in accordance with a judicial decision. The law clearly states that such treatment must be the minimal treatment necessary to preserve the life of the  prisoner/detainee or to prevent severe irreversible disability.  

    Decisions regarding medical treatment for hunger strikers are made by a District Court President or Deputy President pursuant to a request by the IPS Commissioner and with the consent of the Attorney General. Such a request can only be made after a substantial effort has been made to recive the prisoner's consent to treatment. This request must be based on a medical opinion of the treating physician or a physician who most recently treated the striker, that there is a concrete possibility that the prisoner's health condition will shortly become life threatening or that there will soon be an irreversible and severe debilitation to the prisoner. The law's requirement that the medical opinion be provided by a physician familiar with the prisoner's medical condition ensures that the medical opinion adequately and accurately reflects the prisoner's medical condition.

    The amendment accords with international law norms. There are many views regarding this issue in the international arena. In fact, the administration of artificial nutrition to prisoners, against their wishes, is permissible in a number of Western countries.

    In this context, it is important to note several rulings of the European Court of Human Rights (ECHR), especially a 2005 decision (Nevmerzhitsky v. Ukraine, Para. 94) which permits even force-feeding prisoners in certain circumstances. A similar ruling was given by the International Criminal Tribunal for the former Yugoslavia in the 2006 Vojislav Seselj case. Both of these tribunals, in line with the new amendment, recognize the obligation of the state to safeguard the health and life of hunger strikers while balancing this commitment with the prisoners' rights.

    While the amendment‘s goal is to save lives, attempts are currently being made to misrepresent it. Opponents to the law are attempting to portray it as being equivalent to forced feeding through a feeding tube administered without painkilling measures. This is not the case. The life-saving treatments available under the law include regular medical procedures such as the intravenous administration of total parenteral nutrition (TPN), widely used for patients - including children - who cannot consume a diet in the regular manner.

    Previously-existing legislation also gives physicians the right to consider other necessary medical procedures, such as performing blood and urine tests and dispensing medications and salts.

    Any treatment or test must be done in a manner consistent with a doctor's ethical obligations, including the proper use of pain management methods. The law does not instruct doctors what to do - any treatment is subject to the medical and ethical judgement of the treating physician. What it does do is give the medical community the authority to save the lives of hunger strikers. A similar authority traditionally exists in the case of individuals who want to commit suicide or who suffer from diseases such as anorexia, and who reach a life-threatening condition.



     

  • High Court of Justice ruling regarding Muhammad Allan - August 19, 2015

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    1.    While the State of Israel respects the right of an individual to undertake a hunger strike and refuse food as a method of protest, it bears the responsibility to protect the life and health of those in its custody. This leads to challenging situations when inmates in Israeli custody opt to undertake a hunger strike not to end their lives, but to exploit their condition and the ensuing publicity that they receive in order to pressure Israeli authorities to release them.

    2.    The Israel Prisons Service is obligated to respect the free will and autonomy of all prisoners and detainees, and to guarantee them humane treatment at all times. Thus, comprehensive medical care is given to all prisoners and detainees, while respecting their independent decisions and free will.

    3.    All hunger strikers are provided with appropriate medical treatment and care that meet Israeli and international standards, and upon consent, they receive intravenous (IV) fluids, supplements, and vitamins.

    4.    The hunger strike conundrum has come to the fore again due to the prolonged hunger strike of Muhammad Allan, a detainee who has been held in administrative detention since November 6, 2014 for planning large-scale terrorist attacks with fellow Islamic Jihad terrorists.  Allan was previously convicted and imprisoned from 2006 until 2009 for recruiting a suicide terrorist.

    5.    Moreover, Allan's hunger strike gained particular attention due to a recent amendment to Israel's Prison Ordinance (“Preventing Damage from Hunger Strikes"), which aims to resolve the matter in a manner that balances a person's desire for autonomy over his/her body with the government's duty to safeguard the health of persons in its custody.

    6.    Muhammad Allan began his hunger strike on June 18, 2015.

    7.    Pursuant to local legislation, Allan petitioned the Israeli High Court of Justice directly for a repeal of his administrative detention order. On August 4, 2015, the Court rejected Allan's petition after it reviewed the materials relating to his arrest “de novo", including explanations for Allan's arrest and descriptions of the dangers posed by him. The Court extended Allan's administrative detention for another six months.

    8.    Further petitions were brought on Allan's behalf on August 16 and 17, 2015. The High Court of Justice held proceedings on August 17th and determined to continue the case on August 19, 2015, to ascertain Allan's medical condition and to allow for negotiations to take place between the government and his attorneys.

    9.    Due to Allan's declining and uncertain medical condition, the High Court of Justice ruled on August 19, 2015, that he no longer constituted a public danger and that his administrative detention should be suspended. The Court also determined that Allan shall remain at Barzilai hospital in intensive care, receive regular visits from family and friends and upon stabilization of his medical condition and if so desired, be transferred to a different hospital after making a request to the relevant authorities.

    10. The Court stated that if it becomes clear that Allan has suffered irreversible damage to his health, the administrative detention order is immediately null and void.

    11. It is important to note that the High Court of Justice specifically stated that Allan's administrative detention order itself had been justified and that it agreed with the decisions of the military court and military appeals court that ordered the administrative detention.

    12. It should also be emphasized that the recent amendment to Israel's Prison Ordinance, “Preventing Damage from Hunger Strikes", which allows for non-consensual life-saving medical treatment in extreme and limited circumstances, had not been implemented in Allan's case.