Guantanamo hunger strike: Force-feeding and differing interpretations of Common Article 3

Written by Ellen Policinski*

          “Look at the current situation, where we are force-feeding detainees who are holding a hunger strike.  Is that who we are?  Is that something that our Founders foresaw?  Is that the America we want to leave to our children?”

                    –President Barack Obama, May 23, 2013 [1]

The hunger strike at Guantanamo Bay

          The detention facility at Guantanamo Bay Naval Base in Cuba has held alleged members of Al Qaeda and associated forces since January 2002.[2]  Many former detainees have since been transferred to other countries.  There are currently 166 detainees held at Guantanamo.[3]

          On February 6, 2013 a number of the detainees began a hunger strike.[4]  What exactly triggered the hunger strike is disputed, but lawyers for the detainees say that it began in response to the handling of the Koran by non-Muslim guards during searches, which detainees perceived to be religious desecration.[5]  Whatever the initial cause, the hunger strike has since become a more general protest of indefinite detention.[6]  Government officials have tried to downplay the hunger strike, saying the protest is designed to attract media attention.[7]

         This is not the first widespread hunger strike at Guantanamo.  Two earlier mass hunger strikes have occurred, one in 2006 and one in 2009.[8]

Who is on hunger strike?

      Hunger strikers reportedly intend to continue their protest until the US government meets their demands.[9]  Since early February, the official number of hunger  strikers has grown and as of June 28, 2013 there are 106 detainees on hunger strike, 44 of whom are being force-fed.[10]

       These numbers may be deceiving due to the Pentagon’s method of determining when a detainee is on hunger strike. According to military regulations, a detainee who eats less than 25% of 9 consecutive meals and meets certain other criteria is officially counted as a hunger striker.[11]  This means that if a detainee eats one meal per day or even eats one meal every three days, he is not considered to be on hunger strike.

       Attorneys representing the detainees say that the official number of hunger strikers is an under representation, and that in fact about 128 detainees have been participating in the hunger strike.[12]

What is force-feeding?

          If a detainee is on hunger strike for more than 21 days or other risk factors are present he may be force fed through a procedure the military calls “enteral feeding.”[13]  44 of the 106 hunger strikers at the Guantanamo Bay detention center are currently being force-fed.[14]  This number does not include those detainees who may be pressured to eat or drink nutritional supplements without the use of a feeding tube.[15]

      Force-feeding involves strapping down the detainees to a specially designed chair and left tied down so that a liquid nutrient drink can be digested.[16]  A feeding tube is then run through the nasal cavity and down the throat to the stomach, a painful procedure.[17]  The feeding tube makes breathing difficult, and the sensation has been compared to drowning.[18]  Risks of prolonged tube feeding include getting liquid in the lungs and damaging nasal passages.[19]  There is also a risk of neurological disorder associated with long-term use of the anti-nausea drugs administered to prevent vomiting.[20]  The procedure takes from 30 minutes up to two hours and can cause bleeding and uncomfortable side effects. [21]

    Recently, lawyers for four of the detainees on hunger strike filed an application for an injunction against force-feeding in anticipation of the month of Ramadan, when Muslims traditionally fast during the daylight hours. [22]  The government was required to submit its response to this application by July 3, 2013, but it remains to be seen whether the court will accept jurisdiction to decide this issue. [23]

Irish Republican hunger strikers: Lessons learned?

          There have been many prisoner hunger strikes throughout history, but perhaps the most apt comparison to this situation is to the hunger strikes of accused Irish terrorists detained in the United Kingdom. [24]   The first of these hunger strikes occurred in 1917.  Several hunger strikers died, including Thomas Ashe, sentenced to hard labor for life, who died as a result of force-feeding.[25]  Later, Irish Republican Army (IRA) member Michael Gaughan, imprisoned at Parkhurst Prison on the Isle of Wight, died on June 3, 1974 after food became lodged in his lung, which had been punctured by a force-feeding tube.[26]  These and similar incidents over the course of the Irish “Troubles,” along with the 1975 World Medical Organization condemnation of force-feeding as degrading treatment and even torture, led the UK to change its policy and stop force-feeding hunger strikers.[27]

          This eventually led to tragedy and embarrassment for the UK when Bobby Sands and 9 other prisoners starved to death during the 1981 hunger strike protesting harsh treatment of Irish prisoners accused of terrorism.[28]  The British government allowed these men to starve to death despite controversy because it no longer considered force-feeding an ethical or political option.[29]  The protest gained so much popular sympathy that Bobby Sands was elected to Parliament through the Sinn Fein party during the hunger strike as a political gesture.[30]  Sands ultimately died of starvation, and became an especially poignant icon after his death.[31]  More than 100,000 people attended his funeral in Belfast and his death inspired increased support for the Irish Republican cause.[32]

       This illustrates the catch-22 faced by governments during these situations: force-feeding protesters raises serious concerns about the respect of human rights and personal dignity of prisoners, but hunger strikers may risk death if the government does not intervene.

Interpreting Common Article 3

        In July 2006 the US Supreme Court determined that detainees at GuantanamoBay are entitled to protections under International Humanitarian Law (IHL), including those found in Common Article 3 of the Geneva Conventions of 1949.[33]  According to the relevant portion of Common Article 3, detained persons must be treated humanely in all circumstances, and cruel, inhuman, and degrading treatment is prohibited at all times.[34]  The use of force-feeding in response to the hunger strike raises concerns in light of these requirements.

     The International Committee of the Red Cross (ICRC) and various advocacy groups argue that force-feeding hunger strikers violates medical ethics.[35]  The ICRC considers respecting the choice of hunger strikers to fast a matter of human dignity.[36]  In a June 19, 2013 letter to Secretary of Defense Chuck Hagel, Senators Dianne Feinstein (D, California) and John McCain (R, Arizona) joined the ICRC, World Medical Association and Office of the United Nations High Commissioner for Human Rights in calling for an end to force-feeding.[37]  Some opponents of force-feeding have even stated force-feeding a mentally competent detainee amounts to torture. [38]

     The Pentagon has previously addressed the viability of force-feeding detainees under Common Article 3 in its review of Department of Defense (DoD) compliance with the requirements of Common Article 3, which took place during the 2009 hunger strike at Guantanamo.[39]  The DoD’s position was that: “Enteral feeding of hunger strikers for whom continued fasting might result in death or serious harm is being conducted as a medical procedure with the sole purpose of preserving life and health, in accordance with Common Article 3 and DoD policy.”[40]  Around the same time, a Pentagon spokesperson stated that the Common Article 3 requirement that detainees be treated humanely combined with the requirement that the wounded and sick be collected and cared for should be interpreted to permit force-feeding and may even mandate that some action be taken when a hunger striker is at risk of death by starvation.[41]

       These two competing interpretations of the requirements that Common Article 3 places on the government shed light on the dilemma of dealing with the hunger strike at Guantanamo.  No matter what the interpretation, it’s clear that when detainees refuse to eat for long periods of time, both force-feeding and allowing them to starve to death are ugly options.


* Ellen Policinski is a legal fellow with the International Humanitarian Law Dissemination unit at American Red Cross National Headquarters.  She holds a J.D. from Villanova Law School in Villanova, Pennsylvania and an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights in Geneva, Switzerland.

[1] Address to National Defense University (May 23, 2013).  Full text of address available here http://politicalticker.blogs.cnn.com/2013/05/23/full-remarks-obama-announces-changes-to-counterterrorism-policy/?hpt=hp_t3

[2] “By the Numbers: Guantanamo” The Miami Herald (Last updated June 5, 2013) http://www.miamiherald.com/2007/11/27/322461/by-the-numbers.html

[3] Id.

[4] David Remes, “Colonel Bogdan Should be Relieved of his Command at Guantanamo,” The Guardian (June 20, 2013) http://www.guardian.co.uk/commentisfree/2013/jun/20/guantanamo-hunger-strike-bogdan.

[5] Carol Rosenberg, “Food Fight: Guantanamo Captives, Guards at Stalemate,” The Miami Herald (March 24, 2013) http://www.miamiherald.com/2013/03/24/3303644/at-guantanamo-camps-war-on-terror.html; Jason Leopold, “Déjà vu: Defense Officials Downplay Growing Guantanamo Hunger Strike with Bush-Era Talking Points,” Truthout (April 1, 2013) http://www.truth-out.org/news/item/15442-defense-officials-downplay-growing-guantanamo-hunger-strike-with-bush-era-talking-points; Remes, supra note 4.

[6] Rosenberg, supra note 5; Remes, supra note 4; Abdelhadi Faraj, “A Letter from Guantanamo,” HuffPost Politics: The Blog (July 2, 2013) http://www.huffingtonpost.com/abdelhadi-faraj/guantanamo-hunger-strike_b_3536463.html.

[7]  Leopold, supra note 5.

[8] Id.; Luke Mitchell, “Six Questions for Cynthia Smith on the Legality of Force-feeding at Guantanamo,” Harper’s Magazine, The Stream (June 4, 2009) http://harpers.org/blog/2009/06/six-questions-for-cynthia-smith-on-the-legality-of-force-feeding-at-guantanamo/.

[9] Remes, supra note 4; Faraj, supra note 6.

[10] “Guantanamo: Tracking the Hunger Strike” The Miami Herald (as of June 28, 2013) http://www.miamiherald.com/static/media/projects/gitmo_chart/.

[11]Joint Task Force Guantanamo Bay, Cuba, Joint Medical Group, “General Algorithm for a Hunger Strike,” Medical Management of Detainees on Hunger Strike p. 8 (March 5, 2013) available online here; SECDEF Memorandum, “Review of Department Compliance with President’s Executive Order on Detainee Conditions of Confinement” (Feb. 2, 2009) http://www.defense.gov/pubs/pdfs/REVIEW_OF_DEPARTMENT_COMPLIANCE_WITH_PRESIDENTS_EXECUTIVE_ORDER_ON_DETAINEE_CONDITIONS_OF_CONFINEMENTa.pdf.

[12] Leopold, supra note 5.

[13] Joint Task Force Guantanamo Bay, Cuba, Joint Medical Group, “Standard Operating Procedures,” Medical Management of Detainees on Hunger Strike, IV.B.3., p. 5; “Guantanamo: Tracking the Hunger Strike”, supra note 10; Carol Rosenberg, Insert, “About Guantanamo’s Hunger Strike” in “Food Fight: Guantanamo Captives, Guards at Stalemate.”

[14] “Guantanamo: Tracking the Hunger Strike” The Miami Herald (as of June 28, 2013) http://www.miamiherald.com/static/media/projects/gitmo_chart/.

[15] John Knefel, “Guantanamo Bay: Stories from Inside the World’s Most Infamous Jail,” Rolling Stone Magazine, (July 17, 2013) http://www.rollingstone.com/politics/news/guantanamo-bay-stories-from-inside-the-worlds-most-infamous-jail-20130617#ixzz2WWyNoO57.

[16] Ben Fox, “Former Guantanamo Detainee Tells of Force-Feed,” Associated Press (June 15, 2013) http://www.miamiherald.com/2013/06/15/3452678/amid-gitmo-strike-ex-detainee.html.

[17] Michael Keller, Clarisa Diaz, and Abby Haglage, “Right or Wrong, Force-Feeding is Ugly: An Illustrated Guide” The Daily Beast (June 20, 2013) http://www.thedailybeast.com/articles/2013/06/20/right-or-wrong-force-feeding-is-ugly-an-illustrated-guide.html.

[18]Id.

[19] Fox, supra note 16.

[20] Keller et al., supra note 17; Application for Preliminary Injunction Against Force-Feeding, DC District Case 1:05-cv-02349-UNA (June 30, 2013) available online here.

[21] SECDEF Memorandum, supra note 11, p. 57; Keller et al., supra note 17.

[22] Jane Sutton, “Lawyers ask US Judge to Halt Guantanamo Force-Feedings,” Reuters (July 1, 2013) http://www.reuters.com/article/2013/07/01/us-usa-guantanamo-idUSBRE96017Z20130701; Full application available here.

[23] Id.

[24] Ian Miller, “Force-Feeding Guantanamo Detainees is Unethical and Inhumane,” The Guardian (June 25, 2013) http://www.guardian.co.uk/commentisfree/2013/jun/25/force-feeding-guantanamo-detainees-unethical;

[25] Id.; “Thomas Ashe,” Glasnevin Cemetary Museum, http://www.glasnevintrust.ie/visit-glasnevin/interactive-map/thomas-ashe/.

[26] Miller, supra note 24; “Michael Guaghan (1950-1974),” Irish Republican News (Aug. 27, 2004) http://republican-news.org/current/news/2004/08/michael_gaughan_%2819501974%29.html.

[27]  Miller, supra note 24; The World Medical Association (WMA) still maintains its position against force-feeding hunger striking prisoners.  The updated WMA Malta Declaration on Hunger Strikers can be accessed here http://www.wma.net/en/30publications/10policies/h31/.  Article 13 of the “Guidelines for the management of hunger strikers” reads: “Forcible 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.”

[28] “Republican Hunger Strikes in the Maze Prison: October 1980-October 1981,” BBC History http://www.bbc.co.uk/history/events/republican_hunger_strikes_maze; Danny Morrison, “Thirty Years on, Bobby Sands’s Stature has only Grown,” The Guardian (May 5, 2011) http://www.guardian.co.uk/commentisfree/2011/may/05/bobby-sands-1981-hunger-strikes

[29] Miller, supra note 24

[30] Id.; Larry McShane, “Death of Bobby Sands in 1981 put a Human Face on Northern Ireland’s ‘Troubles,’” The Guardian (May 5, 2012) http://www.nydailynews.com/news/world/death-bobby-sands-1981-put-human-face-northern-ireland-troubles-article-1.1071974#commentpostform

[31] Danny Morrison, “Thirty Years on, Bobby Sands’s Stature has only Grown.”

[32] McShane, supra note 30.

[33] Hamdan v. Rumsfeld, 548 U.S. 557 (2006)

[34] The full text of Common Article 3 of the Geneva Conventions of 1949 is available here.

[35] Carol Rosenberg, “Why U.S. doesn’t Let Detainees Starve at Guantanamo Bay,” The Miami Herald (April 13, 2013) http://www.miamiherald.com/2013/04/13/3342849/guantanamo-hunger-strikers-the.html.

[36] “The ICRC is opposed to forced feeding or forced treatment; it is essential that the detainees’ choices be respected and their human dignity preserved.” from “Hunger Strikes in Prisons: The ICRC’s Position,” ICRC Resource Center (Jan. 31, 2013) http://www.icrc.org/eng/resources/documents/faq/hunger-strike-icrc-position.htm.

[37] Carol Rosenberg, “Medical Ethicists Say Stop Guantanamo Force-Feeding”, The Miami Herald (June 16, 2013) http://www.miamiherald.com/2013/06/12/3447980/medical-ethicists-say-stop-guantanamo.html; Donna Cassata, “Feinstein: Stop Guantanamo Forced-Feeding,” The Miami Herald (June 19, 2013) http://www.miamiherald.com/2013/06/19/3460418/dianne-feinstein-asks-pentagon.html; Jeremy Herb, “Feinstein: Pentagon Should Stop Force Feeding Detainees,” Defcon Hill: The Hill’s Defense Blog (June 19, 2013) http://thehill.com/blogs/defcon-hill/policy-and-strategy/306653-feinstein-to-hagel-stop-force-feeding-gitmo-detainees.

[38] Dr. Vincent Iacopino from Physicians for Human Rights was quoted earlier this year as saying “If someone who is mentally competent expresses the wish not to be fed or hydrated, medical personnel are ethically obligated to accede to that persons wishes… Under those circumstances, to go ahead and force-feed a person is not only an ethical violation but may rise to the level of torture or ill-treatment.”; “Why U.S. doesn’t Let Detainees Starve at Guantanamo Bay”, supra note 35.

[39] SECDEF Memorandum, supra note 11.

[40] Id.

[41] A Pentagon spokesperson issued the following written statement in response to questions: “Common Article 3 provides guidance that detained personnel shall be treated humanely.  It also states that ‘The wounded and sick shall be collected and cared for.’  DoD takes very seriously its obligation to provide humane treatment, which includes protecting detainees’ physical and mental health and providing appropriate treatment for disease, guided by professional judgments and standards similar to those applied to personnel of the U.S. Armed Forces.  DoD’s policy of providing care to sustain the life and health of hunger strikers is consistent with Common Article 3.”; Mitchell, supra note 8.

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