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Israel: Law Authorizing Force-Feeding of Prisoners Held Constitutional

(Oct. 5, 2016) On September 11, 2016, Israel’s Supreme Court rejected a petition by the Israeli Medical Association (IMA) and various human rights organizations to declare void legislation passed by the Knesset (Israel’s parliament) in July 2015, authorizing force-feeding of prisoners on a hunger strike. (HC 5304/15 IMA v. Israel Knesset (Sept. 11, 2016), STATE OF ISRAEL: THE JUDICIAL AUTHORITY (in Hebrew); The Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (Amendment Law), SEFER HAHUKIM [BOOK OF LAWS] 5775 No. 2499 p. 241, Knesset website (scroll down to appropriate link) (in Hebrew); The Prisons Ordinance [New Version] 5732-1971, DINE MEDINAT ISRAEL [LAWS OF THE STATE OF ISRAEL] (New Version) No. 21 p. 459 (in Hebrew) (the text of the Ordinance as amended, including Amendment No. 48) (Law); for a summary of the Amendment Law, see Ruth Levush, Israel: Authorization to Give Forced Medical Treatment to Prisoners on Hunger Strike, GLOBAL LEGAL MONITOR (Oct. 6, 2015).)

Petitioners in the Supreme Court case argued against the constitutionality of the legal provisions authorizing forced treatment of prisoners on a hunger strike. The main decision was rendered by Deputy Court President Justice Elyakim Rubinstein, with Justices Menachem Mazuz and Noam Sohlberg consenting.

Background

Palestinian prisoners suspected or convicted of terrorist and other security offenses started a massive hunger strike in 2012. Some prisoners remained on the hunger strike for a long period of time, thereby seriously endangering their lives. To address the situation, a special committee was appointed with the participation of the Ministry of Justice, Ministry of Internal Security, Ministry of Health, Prisons Authority, and Security Service Agency, among other agencies. The committee conducted in depth research on the relevant rules of international law. (HC 5304/15, ¶ 8.) It also studied the unique challenges associated with handling hunger strikes in Israeli prisons. In the course of its deliberations, the committee consulted with a variety of interested parties, including the IMA, before drafting legislation that incorporated some significant changes based on the reservations to the draft text that had been expressed. The draft legislation was later brought to a vote and adopted by the majority of Knesset Members. (Id. ¶¶ 8-9.)

The Amendment Law

According to the Prisons Ordinance, as amended by the Amendment Law, a request to authorize provision of medical treatment for a prisoner on a hunger strike requires that a licensed physician who has treated the prisoner state that in his/her medical opinion, in the absence of specified medical care, the prisoner will face a real and imminent danger to his/her life or risk an irreversible and severe permanent disability. (Id. ¶ 10; Law, § 19M(a).) In considering such a request, the president of the district court or his/her deputy must be satisfied that a considerable effort has been made to obtain the consent of the prisoner for the treatment. The court may conduct the hearing behind closed doors if it believes that a public hearing might deter the prisoner from freely expressing his/her views, or for protection of the prisoner’s privacy. The court may also admit proof into evidence without the presence of the prisoner or his/her representative if the court is of the opinion that disclosure of the evidence might harm state security and its non-disclosure takes precedence over its disclosure for the purpose of doing justice. (HC 5304/15, ¶ 11.)

Prior to making a decision, the president of a district court or his/her deputy must consider the physical and mental status of the prisoner; the consequences of not providing treatment; the risks involved in providing the treatment or alternative treatments; the impact of the treatment on the prisoner’s dignity; the prisoner’s point of view; the results of prior forced medical procedures, if any exist; and considerations of risk to human life or real concern for serious harm to state security, if evidence for that was provided. (Id. ¶ 12; Law, § 14 N(e).) If the court concludes that there is a real danger of irreversible injury to or of imminent harm to the life of the prisoner and that the medical treatment is likely to improve the prisoner’s well-being, an order for provision of forced care will be made. The care must, however, be provided in a way that will guarantee the utmost protection of the prisoner’s dignity and avoid, to the extent possible, causing pain or suffering to the prisoner. (Id. ¶ 13; Law, § 19 P(c).)  A district court decision is appealable to the Supreme Court.  (HC 5304/15, ¶ 15; Law, § 19 S(a-b).)

Summary of Decision by Justice Elyakim Rubinstein

  • Review of Foreign and International Law

A review of relevant foreign and international legislation and case law, according to Rubinstein, indicates conflicting positions on the legitimacy of force-feeding prisoners. Against the position of the World Medical Association, he held, a sizable number of Western countries allow artificial feeding of a prisoner in extreme situations involving a real danger to his/her life. (HC 5304/15, ¶ 89.) The most significant prohibition against forced feeding is found in England, where the law prohibits the provision of life-extending treatment to the prisoner, including by artificial feeding, regardless of the potential medical harm to the prisoner if treatment is not provided. (Id. ¶ 90.) In spite of the general prohibition against forced feeding of prisoners in Canada, a concrete directive issued by the Correctional Service Canada in April 2015 allows medical intervention to save a prisoner’s life when the prisoner is unconscious or lacks the ability to reach a decision regarding his/her medical treatment. (Id. ¶ 91.)

Rubinstein recognized that the law in France, the United States, Australia, Germany, and Austria enables forced artificial feeding under exceptional cases that vary from country to country. (Id. ¶¶ 92-95.) Having reviewed the standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Rubinstein concluded that “[t]he Committee does not completely prohibit the use of forced feeding, but leaves a certain amount of discretion to the [EU Member] States in handling hunger strikes in prisons, while stating that to the extent that a State chooses to utilize this means, it should be based on law and limited to unusual and extraordinary cases.” (Id. ¶ 96; CPT STANDARDS 42 (2002, as last revised 2015), Council of Europe website.)

Rubinstein further referred to relevant decisions of the European Court of Human Rights, which do not completely prohibit forced feeding subject to a three-prong test: first, whether there exists a medical necessity; second, whether “the procedural guarantees for the decision to force-feed are complied with,” and third, whether the way in which forced feeding was provided exceeded the threshold of a minimum level of severity under the Convention, thereby constituting degrading treatment or punishment. (HC 5304/15, ¶¶ 97-100.)

  • Constitutionality Under Israeli Law

According to Rubinstein, the constitutionality of the Amendment Law must be examined in accordance with Israel’s Basic Law: Human Dignity and Freedom. (Id. ¶ 24 & ¶ 101.) Section 8 of the Basic Law provides that the rights guaranteed under the Basic Law cannot be violated except “… by means of a law that corresponds to the values of the State of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required, or on the basis of a law, as aforementioned, by force of an explicit authorization therein.” (Basic Law: Human Dignity and Freedom, SH 5752 No. 1391 p. 150; unofficial translation available at Knesset website (last visited Sept. 30, 2016).)

Rubinstein recognized that force-feeding of a prisoner on a hunger strike harms his/her constitutional right to autonomy and, to some extent, speech, as behind bars the right to freedom of speech is naturally already limited. Considering that the harm is based on a law, the other tests under section 8 of the Basic Law cited above must be met. (HC 5304/15, ¶ 101.)

A. Befitting the Values of the State of Israel

According to Rubinstein, the requirement that a law must “befit the values of the State of Israel” refers to the values of the State of Israel as a Jewish and democratic state. The Amendment Law authorizes inflicting harm on a prisoner’s dignity and autonomy to make determinations regarding his/her life, but, Rubinstein opined, against the rights of the prisoner “stands with full force, the value of sanctity of life.” (Id. ¶ 106.)

B. Appropriateness of Purpose

The identification of the dominant purpose of legislation, according to Rubinstein, is not limited to a review of its legislative history, but should take into consideration the specific procedures that it provides. Considering the detailed requirements for attempting to obtain the prisoner’s consent; hear his/her arguments; and examine the range of possible treatments, risks involved, and the level of intrusion, Rubinstein determined, the dominant purpose of the Amendment Law is to protect the lives of prisoners on a hunger strike, subject to restrictions designed to protect his/her dignity and under strict medical and judicial supervision and control. (Id. ¶ 107.) Saving a life, according to Rubinstein, is protected under section 1 of the Basic Law, and sanctity of life also constitutes a superior value in Judaism. (Id. ¶¶ 113-120.)

The secondary purpose of the Amendment Law, Rubinstein held, is to protect state and public security. This purpose is reflected in section 19 N(e) of the Law, which authorizes the court to consider non-medical considerations in the course of deliberating whether to approve forced feeding. (Id. ¶¶ 108-112.) As the dominant purpose of saving life is “undoubtedly an appropriate purpose,” Rubinstein wrote, the secondary purpose of saving lives of others or of prevention of serious harm to state security is similarly appropriate. (Id. ¶¶ 113-125.)

C. Proportionality

Rubinstein determined that the Amendment Law meets the proportionality requirement for a rational correlation between the between the legally permitted acts that harm constitutional rights and the primary objective of the Amendment Law, namely, saving the prisoner’s life. (Id. ¶ 127.) The Amendment Law also meets the requirements of the second proportionality test, in that it authorizes an action to an extent that does not exceed what is required; it mandates an examination of whether there may be a means of feeding prisoners on a hunger strike that is less harmful than forced feeding based on the circumstances of each individual case. (Id. ¶¶ 128-131.)

The Amendment Law also meets the requirement that there be “a proper relationship between the benefit that arises to the public from legislation whose constitutionality is in question, and the harm to the constitutional right that might result from its implementation.” (Id. ¶ 136.) Although security considerations by themselves do not justify the use of forced treatment, Rubinstein stated, such considerations may be weighed when a treating physician has already determined that the prisoner’s medical status is grave and that there is a real danger to his/her life or that lack of treatment will expose the prisoner to an irreversible serious handicap. (Id. ¶¶ 137-139.)

Decisions by Justices Menachem Mazuz and Noam Sohlberg

While agreeing with the decision of Justice Rubinstein, Mazuz and Sohlberg addressed the security considerations referred to in the Amendment Law in connection with a request for force-feeding of prisoners on a hunger strike. Expressing concern that such considerations will play a role in determining whether or not to approve a request, Mazuz suggested that the procedures for evaluating the prisoner’s medical condition be separated from those followed in assessing the security challenges. According to Mazuz, such a separation can be achieved if the court first evaluates the medical aspects, and only after being satisfied that there is a medical need to proceed with forced treatment, assesses the security considerations. (Mazuz decision, id. ¶ 21.)

Sohlberg, however, was confident that the language of the Amendment Law made it clear that medical considerations are a precondition for any discussion of a request for forced treatment, and that the security considerations were only an additional layer that can be relevant in a limited number of cases. As such, Sohlberg determined, there was no need for a procedural separation between the two phases of medical and security needs. (Sohlberg decision, id. ¶ 5.)