Is Force Feeding Always Illegal?

by Julian Ku

The Office of the U.N. High Commissioner for Human Rights seems to be condemning the forced feeding of hunger-striking Guantanamo detainees as torture, or perhaps as cruel, inhuman, and degrading treatment in violation of the Convention Against Torture.

Force-feeding hunger strikers is a breach of international law, the UN’s human rights office said Wednesday, as US authorities tried to stem a protest by inmates at the controversial Guantanamo Bay jail.

“If it’s perceived as torture or inhuman treatment — and it’s the case, it’s painful — then it is prohibited by international law,” Rupert Coville, spokesman for the UN high commissioner for human rights, told AFP.

This statement makes great headlines, but I don’t have any idea what exactly Coville is saying.  If its painful, then it is torture or inhuman treatment prohibited by international law? “If it’s painful” is not exactly a very demanding standard.  And the World Medical Association standards aren’t necessarily binding nor have they achieved total consensus.

As this Reuters report notes, U.S. courts, and even the European Court of Human Rights, have held that not all forced feeding is illegal.  Even in holding a particular forced feeding a violation of European human rights law, the ECtHR seems to have carved out an exception for “preserv[ing] the life of hunger strikers if shown to be medically necessary and not done for punitive reasons.”

So if that’s right, I think the OHCHR is acting rashly by issuing a blanket condemnation of all force feeding as a violation of international law, or even condemning the Gitmo force-feedings without any acknowledgment of the possible legal justifications.  It makes good headlines, but it should not be taken as an authoritative legal judgment or conclusion.  No doubt force feeding is horrible, and maybe the type of force feeding in Gitmo does cross the line (doesn’t sound like it, but I suppose it is possible).   But let’s not be so quick to assume its always illegal.

http://opiniojuris.org/2013/05/01/is-force-feeding-always-illegal/

3 Responses

  1. Wow, this is pretty poor reading, let alone analysis. The statement quoted doesn’t at all say “If it’s painful, then it is torture or inhuman treatment….” It says, “If it is perceived as torture or inhuman treatment, then it is prohibited by international law”. The em-dash indicates a parenthetical detail which is useful in this case to highlight for those that may not be aware that force feeding is not exactly pleasant.
    Furthermore, of course a statement by a spokesperson for OHCHR should not be taken as an authoritative legal judgment or conclusion. If the statement wasn’t clear and more explanation was desired, the position of the UN and IACHR experts could be easily found here: http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13278&LangID=E
    There is the potential for an interesting legal discussion here, but by so blatantly misconstruing the position of OHCHR and by engaging an artificially constructed strawman rather than the actual debate, this post discourages meaningful dialogue. 
     

  2. Does the detaining authority have an obligation to protect prisoners from self-induced starvation? Not being a lawyer, I’m unfamiliar with any legal latin terms for ‘damned if you do and damned if you don’t', but that would seem to apply in this case. If it’s illegal either way, they should err on the side of least illegal, I guess.
    If a combatant were obtained after being critically injured on the field, the apprehending authority would be under obligation to administer medical care with or without consent (though under normal civilian circumstances consent would be assumed only if the patient were incapacitated and incapable of consent). I’d think that would apply in this situation as well. 

  3. We have a short Note on this issue in the new 2013 4th edition of our International Criminal Law casebook (Paust, Bassiouni, et al. — at Carolina Academic Press — professors: ask them for a free copy — see http://www.cap-press.com )
    There should at least be provision of medical treatment for detainees who make the choice to die so that their death does not involve needless suffering.  I have written long ago on the human right to die with dignity, to choose to live the end of one’s life in dignity (which involves the right to choose). 
    If the US chooses to intervene is such a decision, the US should not engage in torture or cruel, inhuman or degrading treatment because such are absolutely unlawful under the laws of war, human rights law, and the CAT.  But the critical criterion with respect to “torture” is the non-self-applicative word “severe.” And it seems that one criterion accepted by int’l tribunals regarding cruel or inhuman treatment is the non-self-applicative word “serious.”  Of course, one wants to look at the trends in decision for guidance with respect to particular tactics or treatment.

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