On September 6, 2015, four human rights organizations, among them HaMoked, filed a
petition to the High Court of Justice (HCJ) for the cancelation of the
Amendment to the Prisons Act (Preventing Damages due to Hunger Strikes). The Amendment, enacted by the Knesset (the Israeli parliament) on July 30, 2015, allows for the force-feeding of prisoners and administrative detainees protesting through hunger strike. The organizations asserted, inter alia, that the Amendment was contrary to both the Patient's Rights Law and the rules of medical ethics, and also that it discriminated between Jewish and Palestinian inmates. It was further claimed that the aim of the Amendment was not saving the life of a sick hunger-striking inmate, as purported in the Amendment, but the breaking of inmates’ hunger strikes and thus silencing their protest.
In its
response from September 9, 2015, the state argued that the Amendment was not meant to replace the arrangement in the Patient’s Rights Law, which established the criteria for instructing that a patient be treated against his will, upon District Court approval. However, argued the state, this arrangement was “general” and did not take into account the “broad repercussions of a hunger strike or its consequences for the security of the residents of the state”. The purpose of the legislation, claimed the state, was to complement the existing arrangement by “expanding the state’s tool basket for protecting life, bodily integrity, and health of the hunger-striking prisoner”, alongside the protection of state- and public security. One of the state's claims, raised to promote the appearance of legitimacy, was that the value of protecting human life and preventing the death of a hunger-striker was much more important than the violation of the prisoner’s free will.
In the
HCJ hearing on September 17, 2015, the petitioners stressed that the Law was unconstitutional due to its inherent violation “of dignity and personal autonomy, discrimination and harm to equality, and extraneous consideration of extra-medical issues”; further, that it was inconsistent with democratic values which included respect for human rights and humanitarian considerations. The petitioners stressed that the facts on the ground did not support such legislation – rather the contrary; no hunger striking prisoner had ever died, never had there been riots following a hunger strike which the prison authorities could not quell, the number of hunger strikers had declined, and the only instances of death occurred when hunger striking inmates had been force-fed.
Furthermore, the petitioners argued that passing a force-feeding law out of the fear that riots would erupt following the death of a hunger striking prisoner who had not been force-fed, was tantamount to “preventing in advance a legal demonstration because of entities who oppose this demonstration might disrupt the order”. The organizations also maintained that the Law was not a “complementary arrangement” but a unique arrangement; this law enacted by the Israeli parliament was without parallel anywhere else in the world, given that it related to extraneous considerations of security rather than medical considerations. And although under the Law, a medical opinion was required for carrying out a force-feeding procedure, this process was to be set in motion by an initiative of the Israel Prison Service Commander – rather than any medical entity.
The state countered that the Patient’s Rights Law applied, and that the authorities would use the new law only as a last resort. The Law, maintained the state, “comes to prevent irreversible damage at the moment before loss of consciousness”. However, representatives of “Physicians for Human Rights-Israel”, one of the petitioning organizations, clarified that in cases of hunger strike, there was no way of knowing in advance at which critical point the person would be in lethal condition, only in retrospect. Therefore, while no such evaluation could be certain, it was sure to cause severe violation of the rights to equality and personal autonomy of the hunger striking inmate.
