By Jesse Lempel
International law speaks softly on the question of force-feeding prisoners who deliberately starve their bodies for the sake of protest. Feeding them against their will is neither banned outright as a form of torture nor mandated for the preservation of life: in fact, states across Europe and North America come out on opposite sides as to whether it is a legitimate practice altogether. On an issue plagued by such disagreement and ambivalence, one might expect that the force of international law—a shaky proposition in any context—would be terrifically meek.
Yet a September decision of the Israeli Supreme Court upholding a law permitting authorities to force-feed hunger-striking prisoners demonstrates the unlikely avenues through which even fuzzy international law can bend a country’s legal landscape, entering the Court’s constitutional jurisprudence through the backdoor and clearing the way for creative reshaping of a legislative act.
This influence of international law on the Court’s decision may be seen as an instance of what Professor Anne-Marie Slaughter has branded “transjudicial communication”—a term that encompasses dialogue in horizontal channels, between courts of different nations, as well as vertical channels, between national and international courts.
The ruling also offers a fascinating glimpse into the workings of Israel’s highest court as it seeks to weave the law through the web of fears over security and terrorism, respect for human rights and dignity, medical ethics, the norms of international law, and the nation’s own constitutional values as a “Jewish and democratic” state.
I will first analyze the international legal precedents on the topic, then discuss how the Court situates Israeli law in that context and applies the weight of international law to shift its own constitutional interpretation.
The CPT and the European Court of Human Rights
On the European continent, the norms of international human rights law are promulgated and policed by two distinct yet related bodies emanating from the Council of Europe: The Committee for the Prevention of Torture (CPT) and the European Court of Human Rights (ECtHR).
The CPT, in its 1993 3rd General Report, acknowledged that European states have divergent approaches toward a hunger-striking prisoner: “In the event of a hunger strike, public authorities or professional organisations in some countries will require the doctor to intervene to prevent death as soon as the patient’s consciousness becomes seriously impaired. In other countries, the rule is to leave clinical decisions to the doctor in charge, after he has sought advice and weighed up all the relevant facts” (para. 47).
In Germany, for example, Section 101 of the 1976 Prison Act explicitly permits force-feeding prisoners even when they refuse nutrition of their own free will, provided there is a serious danger to the prisoner’s life or health. The same is true in France (Code of Penal Procedure, Art. D.364) (link in French) and several other countries.
By contrast, England has adopted a stance of deference to the prisoner’s autonomy, even at the cost of her own death by starvation. In a landmark 1994 ruling, the Family Division of the High Court held that Derek Robb, a 27-year-old prisoner, was within his rights to starve himself to death (Secretary of State for the Home Department v. Robb  1 All ER 677). Despite having received a diagnosis of “disorder of personality,” including having declared himself a “master manipulator” to the doctor and suffering from what the court described as “heroin dependence, a history of self-injury and ambivalence as to his sexual orientation,” Robb was deemed to be of sound mind. As such, the court ruled, the “right of the defendant to determine his future is plain.” (The decision reversed a nearly century-old precedent, Leigh v. Gladstone , in which the court held that a suffragette who was force-fed while on a hunger strike in prison could not sue for assault, since the Crown had a duty “to preserve the lives and health of the prisoners.”)
The European Court of Human Rights took up this issue in Nevmerzhitsky v. Ukraine (2005). Nevmerzhitsky was detained on suspicion of financial fraud, and after passing a year in prison awaiting trial he began a series of hunger strikes. The Ukrainian authorities force-fed him, citing a local law permitting the practice when the prisoner’s life is in danger. Nevmerzhitsky later sued the government in the ECtHR, alleging that he was subjected to “inhuman and degrading treatment” in violation of Article 3 of the European Convention of Human Rights.
The ECtHR, after citing both the CPT’s language and the WMA’s Declaration of Malta, held that force-feeding is not torture, provided there is genuine medical necessity: “The Court reiterates that a measure which is of therapeutic necessity from the point of view of established principles of medicine cannot in principle be regarded as inhuman and degrading. The same can be said about force-feeding that is aimed at saving the life of a particular detainee who consciously refuses to take food” (id. para. 94).
The ECtHR held that the decision to force-feed Nevmerzhitsky was “arbitrary,” not being based on any specific medical assessment, but in so doing established the principle that international law allows a state to force-feed a hunger-striking prisoner whose life is in jeopardy, provided other procedural safeguards are in place and the treatment is not too severe.
This holding was reiterated several years later in Rappaz v. Switzerland (2013) (link to case in French; official press release in English). Bernard Rappaz was incarcerated for a variety of marijuana-related offenses, and embarked on a widely publicized hunger strike. During a long saga in which he was repeatedly released from prison temporarily only to renew his hunger strike upon his return, the Swiss court ordered the doctor to feed him against his will or face criminal proceedings, an order the doctor fought in court. Although the force-feeding never materialized, Rappaz sued the Swiss government in the ECtHR for allegedly endangering his life by not releasing him during his hunger strike.
The ECtHR dismissed the suit and, relying on its precedent in Nevmerzhitsky, reaffirmed that the Swiss court’s order to force-feed the hunger-striking prisoner was legitimate in a case of medical necessity. As for the doctor’s ethical objections, the Court noted that the various professional declarations of medical ethics eschewing the practice of force-feeding prisoners, such as those of the WMA, “do not by themselves create legal norms” (id. para. 74).
Guantanamo Bay and International Norms
In the U.S., much like in Europe, jurisdictions are divided on the question of force-feeding prisoners on a hunger strike. Despite the difference of opinion, however, the decisive majority of courts permits the practice under certain conditions.
A three-judge panel of the D.C. Circuit Court of Appeals recently weighed in on this topic in Aamer v. Obama (D.C. Cir. 2014). Shaker Aamer, a detainee in Camp Delta at the U.S. naval base in Guantanamo Bay, Cuba, is a Saudi national and British resident who organized several mass hunger strikes of Guantanamo prisoners over the years—as a leader among incarcerated comrades and a fluent English speaker, the guards nicknamed him “the Professor.” Although Aamer was cleared for release even before President Obama took office, he was still being held in 2013 (he was finally released in late 2015, following advocacy campaigns from the likes of then-British Prime Minister David Cameron and Sting, the English rock icon). Aamer launched a hunger strike in protest of his confinement and was subsequently force-fed.
Aamer sued President Obama and other government entities seeking an injunction against his continued force-feeding. The D.C. Circuit declined to intervene, however, explaining that force-feeding is “reasonably related to legitimate penological interests” and may therefore abridge a prisoner’s rights. The government’s legitimate interests here, the Court reasoned, are “preserving the lives of those in its custody and maintaining security and discipline in the detention facility.”
The D.C. Circuit acknowledged a June 2013 letter by Sen. Diane Feinstein, then-Chairwoman of the Senate Intelligence Committee, to then-Secretary of Defense Chuck Hagel imploring him to end force-feeding at Guantanamo. Feinstein’s letter cited both the particular harshness of its application at the U.S. base and the various declarations of international medical and ethical bodies decrying the practice in all circumstances, from which Feinstein concluded that force-feeding is “out of sync with international norms.” (Just two days after receiving Feinstein’s letter, a lawyer for the Defense Department wrote in an internal memo, leaked to Vice News, that the force-feeding of prisoners at Guantanamo is “solidly supported” by U.S. law but contravenes “international law and certain medical ethical standards.”)
Nevertheless, the D.C. Circuit waved away these scruples. “This is a court of law,” the Court announced, echoing the ECtHR in Rappaz, “not an arbiter of medical ethics.” And the law as it stands does not recognize force-feeding a prisoner on a hunger strike as inhuman or degrading. This same logic would likewise prevail in the Israeli Supreme Court.
The Israeli Law
Turning now to Israel, the 2015 law “Prevention of Hunger-Strike Injuries” is the Israeli government’s response to a series of mass hunger strikes by Palestinian prisoners, notably in 2012 when over 2,000 Palestinian prisoners went on a month-long hunger strike protesting the conditions of their confinement—including the fact that many were held without trial as threats to public safety, a practice Israel calls “administrative detention.” The strike attracted intense, and very unwelcome, international political pressure toward the Israeli government, and was viewed by many politicians as a threat to Israel’s ability to hold dangerous individuals and effectively combat terrorism. The law passed in the Knesset, Israel’s parliament, by a vote of 46-40, supported by the right-wing coalition led by Prime Minister Benjamin Netanyahu’s Likud party.
Technically, the legislation is an amendment to the prison code that permits feeding a hunger-striking prisoner against her will, including via insertion of a nasal feeding tube if necessary. But that extreme measure may only be invoked under a strict set of conditions that include a medical assessment of imminent danger to the prisoner’s life or a risk of irreversible harm, a hearing before the district court with input from the detainee’s representative and a special medical ethics committee, and a decision by a judge subject to appeal.
Most controversially, § 19d(e) of the statute further instructs the court, in determining whether to permit the force-feeding, to “weigh considerations of a tangible concern of severe harm to national security, inasmuch as relevant evidence has been presented.”
According to the statute, no doctor may be ordered to perform the force-feeding. It is also noteworthy that despite being on the books for over a year, during which there were multiple incidents of near-death hunger strikers, the law has never been applied in practice. All cases have been resolved by other means.
The International Law and Constitutional Questions
In the case recently decided, Israel Medical Association et. al. v. Knesset et. al., HCJ 5304/15 (Sep. 11, 2016) (link in Hebrew), petitioners were the Israel Medical Association and various human rights NGO’s who sued a host of state actors seeking an injunction striking down the force-feeding law as unconstitutional and in violation of international law. The case was heard by a panel of three Supreme Court Justices, sitting as the High Court of Justice, in which the Supreme Court hears cases of original jurisdiction typically involving suits against the government.
The Israel Medical Association (IMA) argued that the statute violated international laws against torture, such as the United Nations’ 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Article 7 of the 1966 International Covenant on Civil and Political Rights, stating: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Israel is a signatory to both of these UN agreements.
The World Medical Association (WMA), in both the 1975 Declaration of Tokyo (revised Oct. 2016) and the 1991 Declaration of Malta on Hunger Strikers, declared force-feeding “a form of inhuman and degrading treatment,” clearly implicating the UN’s Convention Against Torture and Article 7 of the International Covenant. The law permitting force-feeding prisoners, according to the IMA, is therefore at odds with international law against torture that Israel itself adopted.
Furthermore, the IMA alleged (link in Hebrew), the law thwarts Israel’s own constitutional principles. Although Israel lacks a formal constitution, the Knesset has enacted a series of Basic Laws that serve a constitutional role. One such law is the Basic Law: Human Dignity and Liberty (1992), which forbids, among other things, “violation of the life, body, or dignity of any person as such” (Art. 2). Any law that conflicts with this Basic Law may be struck down by the Supreme Court as unconstitutional.
This Basic Law does, however, acknowledge exceptions: it explicitly allows for a person’s dignity and liberty rights to be curtailed by “a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required” (Art. 8).
The IMA and other petitioners challenged the statute as unconstitutional because its purpose is not “proper,” and therefore not within the scope of the Basic Law’s exception. “The amendment portrays itself as legislation concerned with saving the life of a sick person on a hunger strike,” the IMA argued (link in Hebrew) in its brief to the Court, “but its essence and ra[ison] d’etre is to break the hunger strike and silence their protest.”
In support of this claim, the IMA pointed to numerous explicit statements to that effect by prominent Israeli legislators and ministers who supported the law, as well as the statutory provision instructing the court to weigh concerns of national security in determining whether to allow the force-feeding. What does national security have to do with the well-being of the prisoner, and why is that provision included in an ostensibly humanitarian-minded law? Rather, the IMA insisted, the law was essentially political, not humanitarian, and as such “this purpose in no way justifies a severe infringement of the prisoner’s human dignity.”
The Court unanimously rejected the petitioners’ arguments and upheld the law as both constitutional and in compliance with international law. In a lengthy opinion by Justice Elyakim Rubinstein, the Court held that the force-feeding law passes the tripartite constitutional test set out in the Basic Law for a law that curtails human dignity.
Furthermore, the Court relied on precedents in international case law establishing that feeding a hunger-striking prisoner against her will is neither inhuman nor degrading.
The National Security Wrinkle
Justice Rubinstein, in his IMA v. Knesset opinion, surveyed the international and comparative law and finds ample precedent in the CPT and the ECtHR holdings to establish that force-feeding prisoners on a hunger strike does not amount to torture. Nevertheless, he noted a striking anomaly in Israel’s statute: wherever force-feeding prisoners is allowed in democratic countries, Justice Rubinstein observed, the exclusive consideration is the prisoner’s well-being. Whereas in Israel, alone among the nations, the statute instructs the court to also consider “severe harm to national security.”
This is a curious observation for two reasons.
First, it seemingly ignores the U.S. case law, embodied in Aamer v. Obama, that explicitly authorizes force-feeding prisoners in part on the grounds of “maintaining security and discipline in the detention facility.” This would suggest that Israel is not quite as alone on the matter as the Israeli Supreme Court fears.
Second, and far more interesting, Justice Rubinstein did not treat this anomalous statute as a problem of international law on its own terms. Rather, he folded the issue into his analysis of Israeli constitutional law, granting the international norm a certain gravitational pull on the Court’s constitutional interpretation. To appreciate this maneuver it is necessary to briefly dive into the substantive constitutional question before the Court.
“Proper Purpose” and International Norms
Israel’s Basic Law: Human Dignity and Liberty, Art. 8, allows for another law to curtail an individual’s dignity rights only if it meets a tripartite test: 1) the law is “befitting the values of the State of Israel,” articulated earlier in the Basic Law as the values of a “Jewish and democratic state”; 2) it was “enacted for a proper purpose”; 3) the curtailment of rights is proportionate to the need.
The major challenge here centers around the “proper purpose” prong. Is it proper to consider national security when deciding whether to force-feed the prisoner, or must the sole consideration be preserving the prisoner’s life? This, it turns out, is a complex question—and one in which the Court allowed international law to encroach upon its constitutional jurisprudence.
The Supreme Court had previously adopted the view of its celebrated former President, Justice Aharon Barak, that a law’s purpose should be judged proper or not on its own terms, without regard to the means taken or the right with which it conflicts—weighing the value of the purpose against the right infringed is left to the proportionality prong. But in IMA v. Knesset Justice Rubinstein cited a law review article by Professor Barak Medina (link in Hebrew), former dean of the Hebrew University Faculty of Law, critiquing Justice Barak’s standard.
Professor Medina advocated for a stricter threshold, arguing that the Proper Purpose clause sets “‘red lines’ denying from the outset the legitimacy of certain arrangements that infringe constitutional rights.” In other words, a purpose may be proper in the abstract, but not under specific conditions and therefore out of bounds. For example, it is unconstitutional to imprison a terrorist’s family as a means of applying pressure on the terrorist, even though pressuring a terrorist may well be a proper purpose in the abstract. This, Professor Medina argued, is not primarily because the cost outweighs the benefits in the third-prong proportionality calculus (as Justice Barak might maintain), but rather because applying pressure on a third party is not the kind of purpose that justifies violating an individual’s constitutional right to liberty. “The inquiry must be,” Professor Medina claimed, “whether the purpose in violating this right is the kind of purpose recognized as proper in a democratic society.”
Well, is national security recognized in democratic societies as a proper purpose for which to force-feed prisoners on a hunger strike? The Court held it is not. The reason for this, Justice Rubinstein suggested, is twofold.
In the first place, there must be constitutional limits on what national security can permit. “National security is not a magic phrase,” he wrote, invoking the words of former-Justice Tova Strasberg-Cohen from a 1995 opinion. Justice Rubinstein alluded to a history of serious mistakes and abuses by the country’s security and intelligence agencies, a history he described as flashing a “red light” of “caution” before blindly following their recommendations to trample constitutional rights (para. 124).
Second, Justice Rubinstein unhappily noted that Israel’s law is “quite unique” on the world stage in basing the decision whether to force-feed in part on non-health concerns of national security. (It’s worth repeating that the U.S. law, which also recognizes security concerns as legitimate factors in the decision to force-feed, is peculiarly absent from this discussion and might have eased the Court’s anxiety about Israel’s “unique” law.) Justifying the law primarily on the basis of national security would place Israel awkwardly at the far edge of the world stage—and that, Justice Rubinstein reasoned, indicates that national security should not by itself constitute a “proper purpose” in the context of violating a prisoner’s human dignity.
The Statutory Somersault
The security rationale would not do. Yet the Court upheld the force-feeding law anyway, finding that its “dominant purpose” was the humanitarian one, not the national security one. In order to survive the constitutional test, then, the legislation originally conceived and crafted as a national security measure must be reimagined as a humanitarian health law. And that’s exactly the somersault that the Court performed, or at least understood the Knesset to have performed.
This interpretation of the law likely puzzled not only the petitioners, but also many of the legislators and ministers who sponsored and voted for the bill primarily as a means of neutralizing the political weapon of a mass hunger strike by Palestinian prisoners. As Justice Noam Sohlberg wrote in his concurrence, “the security consideration was among the primary factors driving the legislation of the amendment; an examination of the law’s Commentary and transcripts of the various debates throughout the legislative process leave no room for doubt about that” (para. 3).
Nevertheless, Justice Sohlberg maintained that the factors which the law takes into account virtually all pertain to the prisoner’s health: the doctor’s assessment begins the process, and the judge’s determination is based primarily on the risk to the prisoner’s life. These humanitarian considerations, Justice Sohlberg argued, “‘overtook’ the security considerations during the legislative ‘journey’ and outweighed them” (id.). Indeed, Justice Rubinstein made much of the fact that in the bill’s original draft the security concerns were an integral part of the judge’s consideration—whereas according to the bill’s final form, passed by the legislature, the judge would consider them only if specific evidence is presented. This proves, the Justices reasoned, that the humanitarian purpose ultimately carried the day.
The current international law, as expressed in the CPT and ECtHR case law, does not unequivocally ban force-feeding a prisoner on a hunger strike who is at risk of death or lasting harm. It accepts that democratic countries have different views on the matter. Yet the recent Israeli law goes further than that of the European countries, joining the prevailing U.S. doctrine in considering not only the prisoner’s well-being but also security concerns in deciding whether to force-feed the protesting detainee. Before upholding the law, the Israeli Supreme Court had to rework it: the “dominant” purpose, it held, must be preserving the prisoner’s life, with worries of national security playing only a supporting role.
The upshot is that, while the Court felt comfortable enough to tiptoe beyond the ECtHR precedent of allowing force-feeding of prisoners on exclusively humanitarian grounds, it did so uneasily. Unsettled by incongruous international norms, the Court was nudged toward a narrower reading of its own constitutional text—as though the Justices parsed the law with one eye on the Israeli code and the other on the rest of the world.
* Jesse Lempel is a 2019 J.D. candidate at Harvard Law School and a Feature Editor of the Harvard International Law Journal.
 See generally Anne-Marie Slaughter, A Typology of Transjudicial Communication, 29 U. Rich. L. Rev. 99 (1994); Y. Shany, How Supreme is the Supreme Law of the Land?: Comparative Analysis of the Influence of International Human Rights Treaties upon the Interpretation of Constitutional Texts by Domestic Courts, 31 Brook. J. Int’l L. 341 (2006). On Israel specifically, see Aharon Barak, International Human Rights Law and the Israeli Supreme Court, 47 Isr. L. Rev. 181 (2014); Markus Wagner, Transnational Legal Communication: A Partial Legacy of Supreme Court President Aharon Barak, 47 Tulsa L. Rev. 437 (2011).
 See, e.g., Mara Silver, Note, Testing Cruzan: Prisoners and the Constitutional Question of Self-Starvation, 58 Stan. L. Rev. 631, 642-61 (2005).
 See, e.g., Aharon Barak, Proportionality: Constitutional Rights and their Limitations 248-49 (2012).
 See B. Medina, On ‘Infringement’ of Constitutional Rights and on ‘Proper Purpose’, 15 Mishpatim v’Asakim [Law and Business] 281, 311 (2012).