Force Feeding at Guantanamo and Human Rights
Force feeding at Guantanamo is in the news again. In the space of less than a week between May 16 and May 22, a federal district judge in Washington, D.C. first granted, then reversed, a temporary injunction barring force feeding of Guantanamo detainee Jihad Dhiab. A Syrian citizen, Dhiab has been detained at Guantanamo for 11 years. He was cleared for release to a third country in 2009, but has yet to be relocated. His lawyer informed the press that Dhiab is engaging in a hunger strike because he feels that he has run out of options. The frustrated federal judge Gladys Kessler reversed her original order after being told that Dhiab’s condition was deteriorating quickly and that the federal government would not accommodate his wish to be given the tubal feeding at a hospital.
International human rights law is increasingly clear in its condemnation of force feeding under the circumstances at Guantanamo, where prisoners such as Dhiab engage in periodic hunger strikes as a form of political protest for their indefinite detentions. In May 2013, the UN Office of the High Commissioner for Human Rights released a joint statement of the Special Rapporteurs on Health, Arbitrary Detention and Torture, the Working Group on Arbitrary Detention and the Inter-American Commission on Human Rights decrying the continued detention of individuals at Guantanamo as a violation of international law and stating that “it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.”
Building on this UN statement, Physician for Human Rights elucidates the medical ethics of force feeding and the human rights concerns it raises in a fact sheet here.
U.S. law on force feeding continues to develop. When the Connecticut Supreme Court examined a challenge to force feeding in 2012 in the context of an individual hunger strike in a state prison, it concluded that the international human rights law was not sufficiently clear to constitute binding customary international law. But one year later in the context of the Guantanamo detentions, Judge Kessler credited Dhiab’s arguments that the practice of force feeding violated his human rights. According to Judge Kessler’s 2013 ruling: “Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment. In addition, Petitioner cites in detail statements of the American Medical Association, the World Medical Association, the UN High Commissioner for Human Rights, the UN Rapporteur on Human Rights and Counter-Terrorism condemning the force-feeding of detainees. The American Medical Association in a letter to the Secretary of Defense on April 25, 2013, has declared that the force-feeding of detainees violates “core ethical values of the medical profession.”
This was dicta. At that time, Judge Kessler did not believe that her court had jurisdiction to address a challenge to the conditions of confinement at Guantanamo. A recent Court of Appeals ruling, however, clears the way for the court to consider in detail the human rights dimensions of force feeding at Guantanamo. As the Dhiab case unfolds — with videos of the feedings due to be produced by June 13 — there may be ample reason to squarely address this issue.
For more resources on force feeding and human rights, see the Law Professors’ amicus brief filed in Coleman v. Lantz and the book Interrogations, Forced Feedings and the Role of Health Professionals, by Ryan Goodman and Mindy Roseman.