01 May Is Force Feeding Always Illegal?
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.