Hunger strikes, particularly those undertaken for political reasons, pose a challenge to any democracy. Periodically, inmates in Israeli custody carry out hunger strikes, exploiting the publicity to generate pressure on Israeli authorities to release them.
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.