Hunger strikes and forced feeding The World Medical Association considers that force-feeding of an individual will amount to inhuman or degrading treatment. In the Association’s view doctors should never be used to break hunger strikes through acts such as force-feeding.378 The European Court has also made a similar finding.379 The UN Special Rapporteur on the Right to Health, as part of his report on the situation of detainees in Guantánamo Bay, made the following observation: “From the perspective of the right to health, informed consent to medical treatment is essential, as is its ‘logical corollary’ the right to refuse treatment. A competent detainee, no less than any other individual, has the right to refuse treatment. In summary, treating a competent detainee without his or her consent — including force-feeding — is a violation of the right to health, as well as international ethics for health professionals.”380 Forced medical treatment The European Court has found that it was a breach of Article 3 to administer an emetic to obtain the regurgitation of a small quantity of swallowed drugs.381 Furthermore, the Court found a breach of the right to a fair trial in that the subsequent conviction of the applicant was based on material obtained in breach of the Convention. The Court reiterated that the Convention did not, in principle, prohibit recourse to a forcible medical intervention that would assist in the investigation of an offence. However, it was stressed that any interference with a person’s physical integrity carried out with the aim of obtaining evidence had to be the subject of rigorous scrutiny. In this case, the Court was not satisfied that the forcible administration of emetics had been indispensable to obtain the evidence. The prosecuting authorities could simply have waited for the drugs to pass out of the applicant’s system naturally, that being the method used by many other member states of the Council of Europe to investigate drug offences. The Court found that the authorities had subjected the applicant to a grave interference with his physical and mental integrity against his will. They had forced him to regurgitate, not for therapeutic reasons, but in order to retrieve evidence they could equally have obtained by less intrusive methods. The manner in which the impugned measure was carried out had been liable to arouse in the applicant feelings of fear, anguish and inferiority that were capable of hu378 World Medical Association, Declaration on Hunger Strikers, available at http://www.wma.net/e/policy/h31.htm. 379 “A measure which is of therapeutic necessity from the point of view of 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 Convention organs must nevertheless satisfy themselves that the medical necessity has been convincingly shown to exist […] Furthermore, the Court must ascertain that the procedural guarantees for the decision to force-feed are complied with. Moreover, the manner in which the applicant is subjected to force-feeding during the hunger strike shall not trespass the threshold of a minimum level of severity envisaged by the Court’s case law under Article 3 of the Convention”, ECtHR, Nevmerzhitsky v. Ukraine, Application no. 54825/00, 5 April 2005, para. 94. See also ECommHR, X. v. the Federal Republic of Germany, 1984, 7 EHRR 152 (“under German law this conflict ha[d] been solved in that it [was] possible to force-feed a detained person if this person, due to a hunger strike, would be subject to injuries of a permanent character, and the forced-feeding [was] even obligatory if an obvious danger for the individual’s life exist[ed]. The assessment of the above-mentioned conditions [was] left for the doctor in charge but an eventual decision to force-feed [could] only be carried out after judicial permission ha[d] been obtained”). 380 Op. cit., note 178, Situation of detainees at Guantánamo Bay, para. 82. 381 Op. cit., note 369, ECtHR, Jalloh v. Germany. 134 Countering Terrorism, Protecting Human Rights