Israeli High Court Judge Questions State Security Clause in Forced-feeding Law

Judge raises questions about clause that allows courts to take national security into account when considering whether to force feed a hunger-striking prisoner.

Emil Salman

The High Court of Justice heard a petition Sunday against the law allowing the force feeding of hunger-striking prisoners.

The amendment, passed in July 2015, authorizes regional court presidents and their deputies to force hunger-striking prisoners to undergo medical treatment should it be found that otherwise they could suffer irreversible disability or death. But the legislation also allows the court to take under consideration the effect that the hunger strike could have on state security.

The Israel Medical Association and Physicians for Human Rights were party to the petition.

The justices, Elyakim Rubinstein, Noam Sohlberg and Menachem Mazuz, asked about a clause stating that force feeding would be approved when one factor was “genuine concern about harm to state security, if evidence of this has been presented to the court.”

Supreme Court judge Menachem Mazuz, 2010.
Olivier Fitoussi

Before the amendment was passed, forced medical treatment was enshrined in the Patient’s Rights Act, which allowed such treatment only with the approval of an ethics committee. Such approval is granted after the committee hears from the patient and finds that he or she has received information allowing an informed decision, that the treatment will improve the patient’s condition and that it is likely that the patient would agree to have received it in retrospect. The latter condition has created difficulty in cases of hunger-striking prisoners, who are consciously using their medical condition in protest.

During the hearing Mazuz asked whether the new amendment's explicit reference to state security considerations is necessary. He noted that a legal process that allows a judge to authorize force feeding, in cases when the ethics committee cannot make that decision, sufficiently addresses the security issue.  

Mazuz asked the Knesset’s legal adviser, Gur Bligh, about a scenario in which two prisoners are in identical condition but one is a hunger striker for nonpolitical reasons; for example, depression. The other is striking for ideological or political reasons, so his death could lead to unrest.

Mazuz asked: “According to your approach, in such a situation, can the court decide not to compel treatment for Prisoner A and compel treatment for Prisoner B?”

Bligh responded: “The answer is yes there is a difference between B and A because if B strikes there will be another intifada. But it’s important to stress that what guides us is the desire to save his life.”

Attorney Orna Lin, representing the Israel Medical Association, submitted the petition. “The security argument always fills the void – where there is doubt if forced treatment is required, the security consideration comes in,” she told the court.

Attorney Tamir Blank of Physicians for Human Rights told the court that invoking security considerations meant force feeding, which “can be very painful, invasive and difficult, and turns the process into torture.”

Lin said the law breached medical ethics, and that physicians who took part in force feeding could not be members of the Israel Medical Association.

“Prisoners have not died on a hunger strike since 1966, partly because of the relationship of trust between doctor and patient,” Lin said. “The moment this law passes and they know that security is also a consideration, this relationship will come apart.”

The state’s representative, attorney Arine Safdie Atilah, rejected the petitioners’ arguments. She said judicial approval to force feed was not provided based on security considerations alone. The prisoner’s medical condition was paramount.