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HCJ unanimously approves discriminatory legislation: the law of force-feeding Palestinian inmates on hunger strike is constitutional

On September 11, 2016, the High Court of Justice (HCJ) rejected the petitions of the Israel Medical Association, Physicians for Human Rights-Israel, HaMoked and other human rights organizations, against the law on force-feeding administrative detainees and prison-inmates, protesting through hunger strike.

The court dismissed the petitioners’ arguments that the Law contravened the Patient’s Rights Law, the rules of medical ethics and international law; that it established a separate medical norm for Palestinian inmates, and allowed making medical decisions based on security-political considerations. The court also rejected the argument that the Law’s aim was not saving the lives of hunger strikers, as purported, but breaking up hunger strikes in prisons and silencing the protest of inmates.

The court ruled that the Law meets the constitutionality test; that its professed objectives – “saving lives” and “guarding state security” – are worthy objectives and that security considerations are not extraneous but pertinent to the issue. On the latter aspect, Justice Mazuz noted in reservation: “setting the security consideration as a separate consideration the court must weigh… does indeed raise concern of giving weight, perhaps even decisive weight, to considerations of security and public order at the expense of the medical consideration and the right to autonomy, at least in cases where there is doubt”, and recommended that the state consider revoking the section dealing with security considerations.

The Law in fact allows performing an extended procedure of giving medical treatment and nourishment – against the person’s will – which requires repeated general anesthesia to prevent the unwilling patient from resisting and causing him/herself additional harm. The legitimation of the Law by the HCJ does not alter the fact that it constitutes an infringement of the rights to human dignity and bodily integrity, which may amount to torture. (02) 627 1698   (02) 627 6317

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