Hunger-Striking: A Legal Approach

09/16/2014 . By Mai El-Sadany

In a country witnessing an exponential growth in the number of political prisoners and a deepened set of oppressive laws, detainees and human rights advocates alike have turned to the hunger strike as one of the only remaining tools of non-violent dissent in Egypt. Today, over 156 individuals have declared their participation in a growing global hunger strike. More than half of those participating in the hunger strike are imprisoned and others are acting in solidarity through initiatives like Freedom to the Brave, “Gibna Akherna” (“We’re At The Last Straw”), and the #Fast4Freedom International Day of Solidarity. This latest set of strikes was sparked by activist Alaa Abdel-Fattah, who began a hunger strike in response to ongoing injustices in the case being litigated against him, as well as the death of his father, prominent human rights lawyer Ahmed Seif, who passed away while Abdel-Fattah was in detention. Abdel-Fattah’s release on bail was eventually ordered on September 15.

The hunger strike, which has received international recognition and global support, is being used as a means by which to challenge the growing number of non-violent activists’ detentions on political charges and the unconstitutionality of the country’s Protest Law. The Minister of Transitional Justice has stated that the Protest Law is slated to be amended “very soon” and the Minister of Interior recently claimed to have no problem amending the law; despite this, the Minister of Justice asserts that the law will only be amended if the litigation currently afore the Supreme Constitutional Court is ultimately successful.

Although hunger-striking has long been a tool utilized by activists inside Egypt and across the globe, a tiny, yet remarkable victory most recently came in the form of Egyptian journalist Abdullah El-Shamy’s release. After months of aggressive social media campaigns and Al-Jazeera-sponsored advocacy, El-Shamy was freed on June 17, 2014 after having been on hunger strike for 147 days and in detention for 306 days without charge. El-Shamy, arrested while covering the Raba’a al-Adaweya sit-in dispersal, was released for “medical reasons” after losing over 40 kilograms and suffering serious organ failure. Not all hunger-strikers meet the same success as El-Shamy however. Mohamed Soltan, for example, an Egyptian-American dual citizen who is being charged in the Raba’a “operations room” case, has been on hunger strike for 232 days. Although Soltan has been admitted to the ICU two times in the last week and is on extra blood thinners to avoid a fourth blood clot, it is not clear that the Egyptian government will be willing to grant him the same exceptional release.

From a legal perspective, hunger-striking has long been interpreted to be a form of non-violent resistance argued by many international human rights advocates to be protected under a citizen’s right to freedom of expression, which is articulated in Article 65 of Egypt’s new Constitution. Considering the hunger strike as a manifestation of freedom of expression in turn creates a duty for the state to respect the inviolability of this right despite the constraints upon detainee rights that are referenced in Article 55.

While international law may not be overtly binding on nations due to the absence of treaties that explicitly reference hunger strikes, the international customs setting forth a ban on practices like force-feeding are remarkably clear, articulated by the World Medical Association both in the Declaration of Malta on Hunger Strikes and the Declaration of Tokyo, by the United Nations Commission on Human Rights in 2006, and by UN statements describing force-feeding as amounting to “torture.” The Declaration of Tokyo specifically states that when a prisoner refuses nourishment and is considered capable of forming an unimpaired and rational judgment, he or she will not be fed artificially. Under the Declaration, physicians across the globe are called upon to refuse to participate in, condone, or give permission for torture, degradation, or cruel treatment of prisoners or detainees. The European Court of Human Rights has in recent times, at least twice, explicitly prohibited force-feeding with narrow exceptions. Furthermore, many nations, including the United States, have adopted laws guaranteeing citizens the right to refuse medical treatment (including the right to refuse food and water) as a logical corollary to the “right to health,” thus paving the way for legal protections for the hunger-striking detainee.

More broadly and most certainly as a signatory to the International Covenant on Civil and Political Rights, Egypt also maintains a duty to ensure every citizen’s freedom of expression under Article 19, every citizen’s right to be free from torture, cruel, inhumane, or degrading treatment under Article 7 (also articulated in Article 5 of the United Nations’ Declaration of Human Rights and Article 1 of the Convention Against Torture), and every detainee’s right to dignity and humane treatment under Article 10. Interpretations of the right to health may also be relevant, thus invoking Egypt’s duties under the International Covenant on Economic, Social, and Cultural Rights.

Describing the fate of the typical hunger-striker in Egypt, Mahmoud Kebaish, the Dean of the Faculty of Law at Cairo University, has argued that while the right to hunger strike is a human right, the practices of the Egyptian nation-state seem to run contrary to this reality. In following the provisions of the Prisons Law (Law 396 of 1956) and the Prison Regulations, both of which include vague language allowing physicians to take any measures deemed necessary to preserve the health of the prisoner, prisons have often resorted to questionable practices like force-feeding to bring an end to hunger strikes. Kebaish also notes that the cause of death for detainees who die upon hunger strike is likely to be recorded “suicide.”

Human rights lawyers Ehab Ezzat and Mohamed Zare’ state that as per state practice, upon the decision to begin a hunger strike, the detainee notifies a prison official of his decision and the reasons behind his decision in the off-chance that the Prison Authority is able to resolve the issue. The detainee’s lawyer then presents the Prosecutor with notice of the hunger strike’s commencement and the purposes for the action. The detainee is then taken to the hospital or presented to the Prison Doctor to record his vitals; hospital visits are thereafter scheduled as necessary and more regularly as the health state of the prisoner deteriorates. Zare’ confirms that Egypt’s prisons do not have standardized guidelines governing how prisons are to respond to hunger strikes and whether/when they are to resort to processes like artificial and force-feeding. Reports detailing the country’s prison conditions however express concern that prisoners who partake in hunger strikes are often put under immense pressure to bring their hunger strike to a close; prison officials have subjected hunger-striking detainees to violent beatings, sexual assaults, solitary confinement conditions, and transfer to remote prisons to force an end to the strikes.

Depriving rationally-sound detainees of the right to expression by means of a peaceful hunger strike or forcing a detainee to end his or her hunger strike by violent means (whether through force-feeding or retaliatory torture and sexual assault) violates international law and Egypt’s constitutional commitments to citizen and detainee rights. As the number of hunger-strikers in the country’s prisons continues to increase, and as increasing international visibility is brought to their cases via solidarity initiatives, there is no doubt that the state will be forced to react. The current violent crackdown to silence the country’s dissidents signals persistence by the Egyptian state to continue on a path of regression facilitated by force-feeding and other archaic tools of torture. But this is not the only way—to respect its domestic and international human rights commitments, Egypt should act, immediately, to amend and decriminalize the country’s repressive Protest Law and release all prisoners of conscience.