Guest Post by Dana Moss
On December 12, 2016, after Israel’s High Court of Justice refused to end the administrative detention of two Palestinian hunger strikers, moving only to suspend it, the Palestinians vowed to continue their strike—and additionally to stop drinking water, which put them at immediate risk of death. Their case highlights the continued and excessive use of administrative detention in Israel (a procedure that allows the Israeli military to hold prisoners indefinitely on secret information without charging them or allowing them to stand trial); it also raises issues of conflict with medical ethics, as the government had begun to talk about forced feeding and treatment. Yesterday, on December 22, after a failed appeal of the December 12 decision, Anas Shadeed and Ahmad Abu Farah finally reached a deal with the Israeli authorities and ended their strike, but the next case is not far behind.
Shadeed and Abu Farah, 20 and 29 years old, had been on hunger strike for almost 90 days. The reason for their hunger strike: being placed in administrative detention, a practice where Palestinians are subject to secretive military tribunals, and are often jailed for months and even years without formal charges or a trial. Currently, around 700 Palestinians are held in administrative detention, contrary to the Geneva Convention, which demands that this practice be limited to a case by case basis, without discrimination. Administrative detention in Israel has been used primarily against Palestinians.
Although Israel’s courts have the power to cancel administrative detention, by and large they leave these decisions to the security apparatus. Instead, as they have in this case, the courts generally have recommended suspending detention, which leaves the hunger strikers at risk of recovering medically from their hunger strike, only to be placed in administrative detention once more. Here too, the resolution of this specific case was not in the courts. Rather, on December 22, the security authorities agreed to release the hunger strikers after the renewal of the administrative order for an additional four months.
One encouraging sign, however, was that in its discussion of the appeal, the Court has admitted that this method of dealing with hunger strikes by suspending administrative detention—which leaves hunger strikers as neither imprisoned or detained, nor free to leave—is “dancing at two weddings.” The Court indicated that this is problematic.
Until now, the latest court decisions have had troubling implications for hunger strikers. Recently, the Israeli High Court of Justice declared the legality of the July 2015 Force Feeding Amendment to Israeli’s Prison Ordinance which would in theory authorize a medical team to force feed or force treat. Meanwhile, during one of the appeals of the case the Court stated that “the medical center [where they are currently held] will continue all efforts to convince them to end their strike and to treat them,” without mentioning the need for their consent. Yet Article 4 (in Principles) of the Malta Declaration from the World Medical Assembly of 1991 (revised 2006) specifically states that physicians must benefit those they treat, which includes “not forcing treatment upon competent people nor coercing them to stop fasting.” Moreover, any treatment by force, including force feeding, is contrary to the United Nations’ Committee Against Torture’s Concluding Observations of June 2016, which state that Israel must guarantee that “persons deprived of liberty, competent to take informed decisions, who engage in hunger strikes are never subjected to feeding or other medical treatment against their will, as these are practices that may amount to torture or ill-treatment” (article 27).
As a consistent pattern Israeli authorities have cancelled administrative detention only at the very last minute, when hunger strikers were near death. Such an arrangement has taken place despite repeated claims by Israeli authorities that the detainees are “too dangerous” to release—and so it was claimed in this case. This pattern enables the Israeli authorities to deal one by one with hunger strikers, avoiding their death and the resultant political firestorm while also sidestepping the cause of the hunger strikes—the use of administrative detention. In Israel and the region, this strategy has helped erode respect for medical ethics and the human rights included in national and international standards.
Waiting until the last minute may at some point result in loss of life. Vital medical and diplomatic voices are now needed to urge Israel to end its’ policy of administrative detention. Although the Court’s statements questioning administrative detention may be a hopeful sign, it is unclear where that may lead. Another hunger strike is sure to arise soon: the battle of the hunger strikers to secure their rights should not be a game of Russian roulette.
Dana Moss is International Advocacy Coordinator, Physicians for Human Rights – Israel; she was in court at the hearing of the second appeal.