Issue #31: What can the Tribunal do about Saddam Hussein's hunger strike?

By Michael Scharf

Cite as: Michael P. Scharf & Gregory S. McNeal, Saddam on Trial: Understanding and Debating the Iraqi High Tribunal 147 (2006).

During the trial session on February 14, 2006, Saddam Hussein announced that he and his co-defendants were on day-three of a hunger strike to protest the appointment and actions of Presiding Judge Ra’uf Abdel Rhaman. This announcement must be viewed in the context of Saddam’s other attempts to disrupt and discredit the trial, for example his allegation that US prison guards had tortured him (later proved to be unfounded), his attempt to take prayer breaks in the middle of witness testimony (despite a psychological profile that indicates that he is not in fact a religious person), and his frequent offensive outbursts (including calling the judge “a son of a whore, a traitor, and a homosexual”). Indeed, the lead prosecutor Jaafar al-Moussawi immediately told the press that Saddam and the other co-defendants had eaten breakfast that very day. But what if Saddam really goes on a prolonged hunger strike? And what if this causes his health to seriously deteriorate? Would force-feeding be the appropriate response?

Worldwide, the hunger strike is a common tactic of defendants and prisoners who wish to protest their treatment. In the United States, convicted DC sniper John Allen Muhammad recently staged a hunger strike to protest for more access to legal papers. Suspected al Qaeda terrorists from Qatar, Yemen, Saudi Arabia, and Afghanistan held at Guantanamo Bay are currently staging a hunger strike to protest their prolonged confinement without trial. In Russia, Col. Yuriy Budanov, charged with murdering a Chechen girl, recently went on a hunger strike to protest what he viewed as the biased attitude on the part of the North Caucussus Military District Court. In Spain, former Argentine navy captain Adolfo Scilingo recently went on a hunger strike to protest Spain’s attempt to exercise universal jurisdiction over him in relation to charges that he pushed hundreds of drugged political prisoners out of planes during Argentina’s Dirty War. In Mauritania, coup leaders Major Saleh Ould Henenah and Captain Abderrahmane Ould Mini recently staged a hunger strike in an attempt to derail their trial for treason. In the United Kingdom, convicted animal rights activist/terrorist Barry Horne recently died of a hunger strike staged in an effort to protest his conviction and publicize his cause. And in India, villagers on trial for burning alive Australian missionary Graham States and his children recently went on a hunger strike in an attempt to have the judge removed from their trial.

The hunger strike can be a potent strategic weapon for a defendant determined to disrupt his trial, especially if it renders the defendant too ill to participate in the proceedings. Faced with that prospect, should a court order that the defendant be force-fed, or would that violate the defendant’s fundamental rights? In the United States and elsewhere, courts have ordered force-feeding in such situations. Courts cite three interests in force-feeding a hunger-striking defendant: (1) concerns for the defendant’s life; (2) concern for the orderly administration of justice; and (3) concern over the administrative costs and burden precipitated by the defendant’s hunger strikes. Where a medical determination is made that continued fasting would seriously impair the health or jeopardize the life of a detainee, US Federal and State Courts have consistently held that these interests outweigh defense arguments about the First amendment free speech right to protest and the Fourth Amendment privacy right to autonomy over one’s body. See In Re Soliman, 134 F. Supp. 2d 1238 (N.D. Ala. 2001); Grand Jury Subpoena John Doe v. United States, 150 F.3d 170 (2nd Cir. 1998); Martinez v. Turner, 977 F.2d 421 (8th Cir. 1992); White v. Narick, 292 S.E. 2d 54 (W.VA. 1982); Von Holden v. Chapman, 450 N.Y.S. 2d 623 (N.Y. App. Div. 1982).

There are three alternative methods of force-feeding a hunger-striking inmate: (1) nasogastric tube feeding, accomplished by inserting a tube down the nose through the esophagus and into the stomach; (2) intravenous feeding, accomplished by inserting a catheter into a major blood vessel leading to the heart; and (3) gastronomy, direct surgical access to the stomach. As photos demonstrating the nasogastric tube feeding approach employed on hunger strikers at Guantanamo Bay demonstrate, being subject to force-feeding is an extremely unpleasant experience – one that is sure to raise objections by the international human rights community notwithstanding the long judicial record supporting the practice. See: http://www.indymedia.org.uk/en/2005/10/326467.html Nevertheless, Jundge Ra’uf should make it clear to Saddam Hussein and his co-defendants that he can legally order force-feeding if their hunger strike threatens to derail the trial.

Posted @ 12:04 PM | Experts Debate the Issues: The Dujail Trial