Is forced feeding in response to hunger strikes a violation of the prohibition of torture and cruel, inhuman, or degrading treatment?

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This panel was convened at 2:30 pm, Thursday, April 10, by its moderator, Nigel Rodley of the University of Essex, who introduced the panelists: Baher Azmy of the Center for Constitutional Rights; William K. Lietzau formerly of DoD; Walter Ruiz of Walter Ruiz Law; Rachel VanLandingham of Stetson University College of Law; and Stephen N. Xenakis of Physicians for Human Rights.

INTRODUCTORY REMARKS BY NIGEL RODLEY

I would like to thank the American Society of International Law for kindly inviting me to moderate this panel, which is on a topic that is replete with really profound legal, political, philosophical, and professional ethical issues. The speakers will be able to take you across the range of viewpoints on this topic, from, on the one hand, those who feel that if a state deprives somebody of his freedom, the state can't just allow that person to lose his life, and on the other hand, those who feel that a person, even deprived of liberty, has to be given the same fundamental autonomy and respect as any other person with human dignity and that the state should not intervene against the person's will to save his life, unless there is any evidence of an impairment of will that could be relevant. That is going to be the range of legal and moral philosophical issues that we will be canvassing.

We will also be looking at the interplay between international human rights law and international humanitarian law, with the law of armed conflict, where there will also be some different takes from the perspective of our panelists.

I am going to introduce them to you in the order in which they are going to speak, and I will also introduce myself. My name is Nigel Rodley, a longtime member of the American Society of International Law. I am the current chair of the UN Human Rights Committee, a former UN Special Rapporteur on Torture, and am now at the University of Essex where I chair the Human Rights Center.

The first speaker will be Walter Ruiz, who is now in private practice, but who was formerly a naval officer and was appointed as defense attorney for captives before the Guantanamo Military Committee. He is a defense attorney for Mustafa al-Hawsawi.

The second speaker is going to be Baher Azmy, the Legal Director for the Center for Constitutional Rights, who has been involved in the defense of a number of Guantanamo detainees.

The third speaker will be Stephen Xenakis, who is a medical expert with Physicians for Human Rights. He's a former medical officer from the armed forces who rose to the rank of general before he retired. He spent nearly three months at Guantanamo and has interviewed multiple detainees.

Then we will have Rachel VanLandingham, who is the Bruce R. Jacob Visiting Assistant Professor at Stetson University College of Law and former Chief of International Law of USCENTCOM. She spent four years on detention issues and has been the first-ever command liaison to the ICRC.

We will finish the presentations with William Lietzau on my right here, who is the former Deputy Assistant Secretary of Defense for Rule of Law and Detainee Policy between February 2010 and September 2013, and former Special Advisor to the General Counsel in the Office of the Secretary of Defense.

These are going to be brief, 5-minute presentations. Then I will allow each of the panelists to ask a few questions of each other, and I won't necessarily exclude myself from that process. And then we will open it up to the other participants, and I hope that there will be a lively discussion on these issues.

Without further ado, I am going to give the floor to Walter Ruiz, starting at that end.

WALTER RUIZ

The question that has been posed and framed for me is: Is forced feeding in response to a hunger strike inhumane and degrading treatment that amounts to torture? Is it in fact punishment? I will speak to that from the lens that I have, which is as a participant in Guantanamo defense. From my perspective, it absolutely is degrading treatment, inhumane, and amounts to torture and, in many instances, punishment.

In order to understand why I say that, I think you have to have some understanding of Guantanamo Bay itself, because you need to understand the stimulus or the cause that gives rise to the manifestation of this hunger strike, this peaceful means for protesting.

And the reality about Guantanamo Bay is it is today's version of Devil's Island. Guantanamo Bay has become a place which is a dumping ground for lost souls--forgotten souls who are devoid of hope in many instances and who have come to see their very physical existence as nothing but an existence rather than a life.

The Guantanamo experiment was in essence conceived to circumvent some of our most basic protections and human rights under U.S. constitutional law. Guantanamo is and has been and continues to remain a constitution-free zone. It also was geared towards avoiding the protections of the Geneva Conventions. It was supposed to be isolated, and it is isolated. It is supposed to isolate the individuals who were held in Guantanamo Bay, and it was conceived really out of fear. And it was a fear out of our own system of justice and the values that we cherish, and that our institutions couldn't handle these kinds of cases.

These men have been held in many instances without a trial for over 10 years, in most instances without any charges. From the very beginning and for a lengthy period of time, they have had no contact whatsoever, no contact with family members, no contact with lawyers, deprived of their rights to meet with counsel or representatives. To this day, Mr. al-Hawsawi remains in a position where the United States government refuses to allow him to meet with representatives of Saudi Arabia.

So this is the setting. This is the place that breeds hopelessness and despair, and out of that hopelessness and despair grew a cry from these men, some of whom, as you well know, having been cleared for release for many, many years. That was a thirst, in my view, for justice. Their cry and their expression was a thirst for justice. It was not a death wish. It was not an expression of a desire to die, but rather an expression of their desire to live, and to live a meaningful life, not just an existence. In their desperation, they sought to attain a meaningful life and some justice for their cause by engaging in a means of peaceful protest, which is what we refer to as the hunger strike, and that is exactly what they have done. That is exactly what they did.

What comes next and what must never be forgotten is the reaction. Guantanamo's mantra is that they are standing for the values of safe and transparent and humane treatment of individuals. I would submit to you that while that sounds nice, and it looks good on paper, and it plays well on their website, it is not true in actuality. Actions must speak louder than words.

The reaction to the hunger strikes was fairly brutal. The reaction to this peaceful means of expression was essentially to deter. It was meant to deter any additional means of peaceful protest such as hunger-striking. It was meant to punish the strikers, and it was meant to make hunger-striking so undesirable that nobody would want to go through those procedures again. And that is exactly what has happened.

I am not sure if some of you have seen the first-person accounts that have come out of Guantanamo Bay, but certainly we know that there are six-point restraints where people are virtually immobilized, unable to move whatsoever, while tubes are snaked through their nasal passages, scorching many times their nasal cavity as well as their esophageal passages. Fluid is pumped into their stomachs multiple times a day, and in contravention of acceptable medical procedures, tubes are removed multiple times, which prolong and increase the suffering of those types of forcible feedings. Men defecate on themselves. They are given laxatives and are allowed to sit in their own feces. I would say that while we may be sitting here debating this, there is in fact no doubt that this constitutes degrading and inhumane treatment that amounts to torture.

I will simply say that the reality is far worse than perhaps what most people understand, and I think this is an important debate, and I look forward to having it today. Thank you very much.

NIGEL RODLEY

Thank you, Walter. The next speaker is going to be Baher Azmy from the Center for Constitutional Rights.

BAHER AZMY

I am the Legal Director of the Center for Constitutional Rights (CCR), which filed some of the first habeas petitions on behalf of Guantanamo detainees in 2002, resulting in the Supreme Court ruling in 2004, Rasul v. Bush, which authorized challenges to the legality of detentions in Guantanamo. Since that time, CCR has been coordinating the representation of hundreds of detainees. Currently, we represent directly nine individual detainees, nearly all of whom participated in the mass hunger strike in the early months of 2003. We still represent Tariq Ba Odah, a 34-year-old Yemini detainee who has been cleared for at least since 2009 and who has been on a continuous long-term hunger strike since 2007--or what the military standard operating procedures now call, with a sort of Kafkaesque nod to the religion of the detainees, a "long-term non-religious fast."

I think Dr. Xenakis will stress that the ethical prohibitions on force-feeding prisoners, particularly where they are not facing imminent death, appear fairly clear. The ICRC, various UN rapporteurs, the World Medical Association, the American Medical Association, bioethicists, and human rights organizations have all regularly concluded that the forced feeding of prisoners, including those at Guantanamo Bay, amounts to cruel, inhuman, and degrading treatment. This raises the prospect that the United States is in violation of its obligations under the Convention Against Torture as well as Common Article 3 of the Geneva Conventions, not to mention...

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