In this post I'm going to look at some of the legal and societal infrastructures that have shaped the conjoined practices of hunger striking and force feeding.
Historic Periods
From my research, it seems that the long history of abstaining from food as protest can be split into two periods:
1. Pre-judicial period
In ancient and pre-modern societies without state supported legal systems, there are examples of fasting being used as a way to protest injustice or recover debts. The practice was a public display of your hunger - you went to the home of the person who had wronged you or owed you, and fasted on their doorstep.
2. Post-mass media
Hunger strikes in modern states all took place after the advent of mass media, when newsworthy events could be conveyed to national populations and around the world: Suffragettes, Indian nationalists, Irish Republicans, Turkish political prisoners, and more recently, in an even more connected media environment, Palestinian political prisoners in Israel and prisoners held in Guantanamo Bay.
I'm sure there are many examples of force feeding in between these two periods, but it seems to me that the gap between these periods can tell us something about refusing food as protest.
In both periods, the refusal of food and the possibility of starvation is meant to arouse shame - shame from the person or organisation being petitioned, and communal shaming from those in the who witness the process.
In the first period, the action was undertaken on a small scale, involving people who were part of the same community. The arrival of properly enforced systems of law eliminated the necessity for this kind of activity - the power to recover debts and correct injustices was passed over to the courts and there was no longer any need to starve yourself on the doorstep of a debtor.
In the second period - from the advent of mass media until now - hunger strikes don't petition an individual person, rather they are a way of making injustices within the prison system visible to large populations via mass media. Modern hunger strikes rely on states that have a duty of care to their prisoners, and news media that can report on hunger strikes to the population of those states.
The effectiveness of a hunger strike is proportional to the percentage of the population who are outraged or angered by witnessing the hunger strike via the news, and turn to processes of politics, law or protest in order to restore what they see as justice on behalf of the hunger strikers.
In between these periods fasting was not an effective protest because legal systems had superseded inter-personal shaming tactics as ways of recovering debts or righting wrongs. But at the same time, prison systems had minimal duties of care to their prisoners, and there was no mass news media that would report any protest against prison conditions, to a public willing to shame their government into improving them.
Force Feeding as a State Response to Hunger Strikes
From the advent of mass media up to and including the present day, state responses to hunger strikes have varied, but have often involved attempts at force feeding. States turn to force feeding to achieve two related outcomes:
1. To neutralise the impact of the hunger strike on the bodies of the hunger strikers - in other words to stop the hunger strikers from dying.
2. To break the strike and suppress protest by showing the hunger strikers and any potential strikers that they are willing to respond to the strike with an act of aggression. Force feeding, as discussed in previous posts, is an unpleasant and uncomfortable process, and if performed in certain ways, very painful for the person being fed. It makes the strike meaningless by feeding the prisoners against their will, and it is also a punishment and a deterrent.
The second outcome is the political outcome desired by the state, but the first outcome is often played up for the legal arguments that support force feeding.
Legal and Medical Attitudes to Force Feeding
Since 1975 the World Medical Association has had a prohibition on doctors carrying out force feeding on hunger strikers or anyone whose decision to refuse food is made with 'unimpaired and rational judgment concerning the consequences of such a voluntary refusal of nourishment'.
In a more recent declaration, the WMA has explictly condemed force feeding. It's worth quoting this paragraph in full (my underlines):
'All kinds of interventions for enteral or parenteral feeding against the will of the mentally competent hunger striker are “to be considered as “forced feeding”. Forced feeding is never ethically acceptable. Even if intended to benefit, feeding accompanied by threats, coercion, force or use of physical restraints is a form of inhuman and degrading treatment. Equally unacceptable is the forced feeding of some detainees in order to intimidate or coerce other hunger strikers to stop fasting.'
The UN Human Rights Commission regards force-feeding as a form of torture and it has made statements to particular countries condemning their use of force feeding and asking them to stop, most recently the U.S in regards to force feeding at Guantanamo and Israel in regards to its political prisoners.
Article 3 of the Geneva Convention doesn't mention force feeding by name, but prohibits the 'humiliating and degrading treatment' of prisoners. This is the usual legal argument against force feeding and from all the descriptions of force feeding I have read, it is an accurate summary of the experience.
However, when individual courts actually make judgements on whether or not force feeding can be used in specific cases they often come down on the other side, or at least, they maintain a confusing ambiguity around force feeding.
The European Court for Human Rights (ECHR) has ruled on multiple cases of force feeding. Although it is bound by the Geneva Convention's prohibition of the use of torture, it has found that, in contradiction to the UNHRC and the WMA that,
'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.'
The judgement here is about the intention of the force feeding: if it is aimed at saving the life of a detainee, then it is legal. If the intention is anything other then that, then (it implies) it is torture. Here you see the twisting and turning required by states if they want to force feed hunger strikers. They must present their force feeding as a medical necessity and nothing more. Of course, they must only present it in this way in a legal context, in the political realm they can be more explicit in their desire to use force feeding as a form of suppressing protest.
Most recently, the Israeli Supreme Court recently upheld the new legislation which reintroduced force feeding as a legally sanctioned response to hunger strikes.
The wording of legislation uses the usual language describing force feeding as a life saving treatment, but it also gives courts the power to recommend force feeding in cases where there is a threat to public safety.
The legal advisor to the Ministry of Public Security explained how hunger strikes could be a threat to public safety,
'If a hunger striker dies in prison, it causes riots, in prison, in Judea and Samaria [the West Bank], in Palestinian territories.'
This consideration of public safety alongside the health of the prisoner completely changes the argument for force feeding, and makes explicit the political aim of force feeding. If factors outside the health of the prisoner are used to make decisions that impact on the body of the prisoner, then that act of force feeding can no longer be described of as medical treatment, and can only be understood as punitive and therefore as torture.
However, in this case, The Israeli Supreme court, in considering a challenge to the bill, did all the legal gymnastics on behalf of the Israeli parliament. In the court's judgement they claimed that although public safety was a driving force in the parliament's decision to originally pass the legislation, over time, the argument that force feeding is a necessary medical procedure had surpassed public safety as the primary reason that the law should be passed. The Supreme Court, therefore, were upholding it only because of the medical argument, even though the intention of the law was to prevent hunger strikes for political reasons. And, because the Supreme Court did not amend the law, it passed with the public safety element intact.
The law is also interesting in how it heads off the possible issue of doctors refusing to carry out the procedure (the Israeli Medical Association has issued a statement saying that doctors should refuse to force feed hunger strikers). The law doesn't require a doctor to perform the force feeding, any 'therapist' can do it. And a therapist can be anyone designated a therapist by the Israeli Ministry of Health.
Formal Invention
All international bodies that have examined force feeding have condemned it as an inhumane practice, but by not being named in the Geneva Convention it escapes the internationally recognised definition of torture on a technicality.
Force feeding can be made to appear similar to consensual forms of enteral feeding - by using medical technologies and medical food replacement products, by carrying out the procedure in a hospital, and through the assumption by the general population that the procedure is normally carried out by a doctor. This similarity is exploited to mask the real intention of force feeding, making the procedure ambiguous enough for national courts to judge force feeding as though it were a medical procedure, rather than a means of political suppression.
The particular experiences of force feeding endured by different hunger strikers in prisons or detention centres around the world are shaped by international conventions that prohibit it, as much as by the national legislation that allows it. The requirement to make force feeding appear to the public (and possibly to the legislators themselves) as a legal medical procedure ensures that force feeding has become a very strange and unique form of torture.