The Right to Choose: Zapata Tamayo

Cuban petty criminal Orlando Zapata Tamayo died on Tuesday 23 February following an eleven-week hunger strike.

It seems the ability to exercise reason, especially by European parliamentarians, may also have died on that day.

Before the corpse was even cold, a chorus of condemnation had circled the globe, accusing the Cuban authorities of failing to intervene to prevent the death of this ‘political prisoner’.

But should they have?

The right to physical integrity

The right of every mentally competent individual to assert control over their physical integrity is a human right,[i] widely, although not universally, observed in practice.[ii]

Examples include the individual’s right to request and/or refuse medical treatments and interventions (abortion, blood transfusions, resuscitation, etc), as well as the right to decide what (so long as it is legal), and how much, they do or do not take into their body, or even what they do with their body, regardless of whether what they do, or what and how much they ingest is ‘good’ or ‘bad’ for their health, and whether or not, and how quickly, it will result in their death.

One need only recall the variations in sexual behaviour from Michael Hutchence to a Buddhist monk, the popularity of ‘extreme sports’ alongside a gentle stroll in the park, a vegan or rampant carnivore, cigarette-smoking/alcohol abusing excesses to complete abstinence, to mention just a few common examples of fellow citizens exercising the latter rights across the entire spectrum, including of consequences.

A woman’s right to obtain a safe abortion, a Jehovah’s Witness’ right to refuse a blood transfusion, a terminally-ill person’s right to waive resuscitation or artificial feeding, are all examples, however contentious, of the right to request or refuse medical intervention. In all of these cases, the autonomy of the competent adult to consent to invasive medical treatment over-rides the medical practitioner’s duty to preserve life at all costs.

These practices are to be observed in numerous countries, including many of Europe, thus are a pretty clear and widespread acknowledgment of the individual’s right to physical integrity in customary law at least - and that governments have no place in the bedroom, the playroom, the kitchen or the consulting room of the consenting, competent adult citizen of any country.

Most governments in fact concur that their role, as circumscribed in international law, is rather to provide the necessary legal and medical frameworks to enable their citizenry, including prisoners, to avail themselves (or not) of therapeutic interventions - often evident in documents such as patients’ ‘Bills of Rights’, ‘living wills’, ‘advance health directives’ - and to ensure the provision of safe, professionally-competent health services to meet the assessed and/or expressed needs of the citizenry, in accordance with human rights norms.

Hunger Strike, Voluntary Total Fasting, or Suicide?

According to Hernán Reyes of the International Committee of the Red Cross, (who coined the term Voluntary Total Fasting), “Real hunger strikes involve actual fasting, which has to be voluntary and has to be pursued for a specific purpose.”[iii] Reyes is careful to point out that a person prepared to hunger strike until death should NOT be put in the same category as a person who is suicidal. “Someone who attempts suicide is either appealing for help, as in the majority of cases, or he truly wants to end his life,” he says. “The clear-cut case of a politically motivated hunger striker is different. The striker does not want to die: on the contrary, he wants to “live better“, by obtaining something for himself, his group or his country.”

Considering such prisoners as suicidal gives authorities an excuse to intervene forcibly, usually by force-feeding. And it is force-feeding that constitutes the link with coercion and torture. The issue of the fasting prisoner’s consent is, he holds, “...a key factor in determining the actions doctors involved will have to take.” (my emphasis)

The point that the European Parliament et al seem to have missed is that there are two distinct players in this scenario – the state authorities and the medical practitioner/s - both of whom have different concerns and standards.

As Roger Houchin, resident expert for prison management in the Sarajevo Office of the Council of Europe wrote in 2007, these two parties must reconcile “the duty to preserve life with the duty not to treat people in an inhuman or degrading manner, or to torture them” (state authorities), and “their duty to care, promote health and preserve life with the ethical duty to base treatment on the wishes of the patient and to administer treatments only after informed consent has been given” (medical practitioners).[iv]

He cites a case from the European Court of Human Rights, noting that “...this judgement clearly establishes a need to separate the ongoing medical care of the patient from any duty on the state that it may wish to exercise in meeting its legal duties.”[v]

If the European Parliament can’t listen to its own Human Rights Court, who will it listen to?

International Norms Regarding Force-feeding and Hunger-striking Prisoners

Perhaps other international instruments specific to these issues will carry some weight. The relevant instruments are:

i) The Standard Minimum Rules for the Treatment of Prisoners[vi],

ii) The World Medical Assembly (WMA) Declaration of Tokyo[vii],

iii) The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)[viii], and

iv) The World Medical Assembly Declaration of Malta[ix].

Re i), Article 54 specifically prohibits the use of force on a prisoner other than in self-defence, during an attempted escape, or following resistance to a lawful order. The refusal to eat does not come into any of these categories.

Re ii), The Declaration of Tokyo prohibits any participation in torture, whether actively, passively or through use of medical knowledge, by a medical doctor. Article 5 of the Tokyo Declaration also stipulates that prisoners on hunger strikes shall not be force-fed.

Re iii), Article 4 of the CAT is unequivocal in its condemnation not only of torture, but also of complicity in it by other personnel, such as medical practitioners. This prohibition arises not only because force-feeding had been used as a means of torture, but also because of the potential for doctors to be “obliged to administer nourishment against the prisoner’s will and thereby effectively revive him for more torture.” [x] The European Court of Human Rights has found force-feeding to constitute a form of inhuman and degrading treatment.[xi]

“It is ethical to allow a determined hunger striker to die in dignity rather than submit that person to repeated interventions against his or her will.” – WMA

Re iv), The World Medical Assembly is absolutely clear that forced feeding contrary to an informed and voluntary refusal is unjustifiable, is never ethically acceptable, and is a form of inhuman and degrading treatment. They say in Point 4, “Avoiding 'harm' means not only minimising damage to health but also not forcing treatment upon competent people nor coercing them to stop fasting. Beneficence does not necessarily involve prolonging life at all costs, irrespective of other values.”

If we take Houchin’s advice, and it is well-founded, we have to conclude that ultimately it is the “Voluntary Total Faster” and their medical practitioner that must decide if, and when, to intervene - not the Cuban Government, and even less the European Parliament.

“The practitioner will take effective steps to ensure that the patient is managed in an environment in which he is as free as can be achieved from coercion or influence (by either peers or the authorities) and in which they can make an informed personal choice...

There must be no interference by the state authorities with the free conduct of the doctor’s management of the case. (my emphasis)

The doctor will throughout his management respect the informed choice of the patient... Many hunger strikers...are making clear and rational choices about their own health and safety. Where this is the case it is the ethical duty of the doctor to respect their wish”[xii]

Does the European Parliament et al expect us to take seriously their apparent demands that Cuban doctors should have performed invasive medical procedures contrary to an informed refusal by a competent patient – ie breached World Medical Association ethical standards, as well as international human rights law?

And the implied alternative, that the Cuban Government should have ridden rough-shod over their medical practitioners’ clinical independence, as well as the right of Orlando Zapata Tamayo to fast to the death if he competently decided to do so, in accordance with his rights under the UDHR, and the Standard Minimum Rules for the Treatment of Prisoners?

It seems the Cuban doctors, and the Cuban Government, are in fact the ONLY ones observing human rights and international professional standards on this occasion...especially when you take into account Point 8 of the European Parliament Resolution,[xiii] which is straight from the Bush regime’s Commission for Assistance to a Free Cuba, first published in 2004, and ‘updated’ in 2006[xiv]

Mein Kampf Mark 2

As Tom Crumpacker noted then[xv], “It's unusual to publicly issue beforehand a plan for the subjugation of a sovereign nation. The last historical example which comes to mind is the 1924 publication of Adolph Hitler's Mein Kampf, which outlined his proposed steps in the upcoming takeover of Germany by the Nazi Party. Unfortunately, no one in Europe paid much attention to it.”

He is mistaken – they are not only paying attention, but last week’s Resolution suggests they are following his annexation strategy to the letter. It seems the European Parliament has not just lost its powers of reason and its ability to act in accordance with human rights, but its collective memory as well.

Like Poland was in 1939, Cuba is a sovereign state. The 1976 Cuban Constitution was developed and endorsed by the vast majority of Cubans, amended by them in 1992, and again endorsed in 2002 by 93% of eligible voters. It determines the form and process for change and reform in the country, and clearly and unequivocally states the socialist nature of the Republic of Cuba and the economic, social and cultural development they have chosen to pursue under the protection of this Constitution - ample evidence of Cuba’s legitimacy and that of its government, thus its right to sovereignty and self-determination. This right is fundamental to international law, being enshrined in both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)[xvi], and customary law, as well as being reiterated in later instruments.

For example, Article 2 of the Vienna Declaration of 1995 states:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status, and freely pursue their economic, social and cultural development....In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind[xvii].

Demanding a “process of political transition” in Cuba, whether by the United States or the European Parliament, is an unabashed attempt to “dismember or impair, totally or in part, the territorial integrity or political unity”[xviii] of that country, and constitutes a gross abuse of Cuba’s rights under both international and customary law.

It is for the Cuban people, not the United States or the European Parliament, to decide if, when, and how they will conduct or reform their political, civil, economic, social and cultural life, and towards what end.

If that doesn’t make it clear enough, Article 8 of the Vienna Declaration might help jog their memories:
Democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives.

There is no requirement for multi-party systems, ‘democracy’ only requires that there is universal suffrage, regular free and fair elections, and secret ballots – all of which Cuba has, and is in fact in the process of conducting right now, in one of the best examples of ‘direct democracy’ to be found anywhere in the world.

Further, The United Nations Siracusa Principles [xix] state at Article 21:

“While there is no single model of a democratic society, a society which recognizes, respects and protects the human rights set forth in the Charter of the United Nations and the Universal Declaration of Human Rights may be viewed as meeting this definition.”

Misrepresentation of legitimate derogations

The European Parliament ‘resolutions’ about ‘political prisoners’ demonstrate a deliberate misrepresentation of the Cuban reality for the past 50 years – a reality dogged by literally hundreds of armed attacks, bombings, biological attacks, assassination attempts, the murder and injuring of thousands of Cubans, the destruction of property, facilities, infrastructure, the broadcasting and jamming of Cuban airwaves – all with the express purpose of ousting the Cuban government, and well-documented in declassified FBI documents, and more lately in several court cases detailing terrorist attacks against Cuba.[xx]

Article 17 of the Vienna Declaration says“...activities aimed at ...threatening territorial integrity, security of States and destabilizing legitimately constituted Governments” are “acts, methods and practices of terrorism.”

As the European Parliament is well aware, Cuba has literally been subjected to unrelenting terrorism for 50 years, mostly perpetrated from the United States in flagrant breach of the US. Neutrality Act.

The country has suffered a state of ongoing paramilitary siege, and in order to protect national security, for the very survival of the nation, the Government has had to derogate certain rights. It has never, however, derogated the peremptory norms.[xxi]

The Siracusa Principles allow at Article 29 that “National security may be invoked to justify measures limiting certain rights only when they are taken to protect the existence of the nation, its territorial integrity or political independence against force or threat of force.”[xxii] And Articles 18 and 19 of the ICCPR, relating to the freedom of thought, conscience, and religion, and to holding opinions and the freedom of expression, include ‘limitation clauses’ ie provisions indicating that these rights cannot be absolute, but must be adapted to meet a state’s interest in protecting public safety, order, health, morals, or national security.

While Cuba has only recently signed, and has yet to ratify the ICCPR, it has clearly accepted international law as a general system, and has for many years abided by the rules, particularly the non-derogable norms – while the loudest of Cuba’s critics, including the United States and several European states, demonstrably have not.

In addition, Raul Castro offered some months ago to negotiate the release of the mercenaries (not political prisoners) imprisoned in Cuba, in exchange for the release of the five Cuban anti-terrorists currently imprisoned in the United States. The Obama administration has remained silent.

The European Parliament would do better to direct its resolutions for a peaceful transition to democracy to that government, if it is seriously concerned about “defending the universality and indivisibility of human rights, including civil, political, economic, social and cultural rights,” and of obtaining the release of the mercenaries.

Full circle - The right to choose

Just as an individual has the right to make informed choices regarding their physical integrity, so a people has the right to make choices regarding their sovereign integrity, and the Cuban people had the right, and the wit, to choose a system different to that of the failed capitalists of the west.

They also have the right to have that choice, and their observance of all non-derogable rights, both acknowledged and respected.

One can only hope that whatever fever coursed through the corridors of Strasbourg last week has run its rabid course, and the European Parliament will wipe the foam from its mouth, have a cool drink, and admit that making hasty resolutions at odds with a host of human rights and international law and norms has damaged not only its own reputation, but also the good health of the international community, not least that of Cuba.

In the interest of being seen to pay more than mere lip-service to human rights, a follow-up Resolution is in order, retracting every unsubstantiated allegation, and every demand at odds with guaranteeing Cubans, and their prisoners, the enjoyment of the internationally-accepted individual and sovereign rights to non-interference.

[i] Universal Declaration of Human Rights (UDHR) Article 3: Everyone has the right to life, liberty and the security of person. http://www.unhcr.org/refworld/docid/3ae6b3712c.html [accessed 15 March 2010]

[ii] George J. Annas Hunger Strikes at Guantanamo — Medical Ethics and Human Rights in a "Legal Black Hole" http://humanrights.ucdavis.edu/projects/the-guantanamo-testimonials-project/testimonies/testimony-of-military-physicians/hunger-strikes-at-guantanamo-2014-medical-ethics-and-human-rights-in-a-legal-black-hole/ [accessed 15 March 2010]

[iii] Hernán Reyes Medical and Ethical Aspects of Hunger Strikes in Custody and the Issue of Torture 1998http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList302/F18AA3CE47E5A98BC1256B66005D6E29 [accessed 15 March 2010]

[iv] Roger Houchin Hunger Strikes and Artificial Feeding: A Guidance Note 2007 http://www.coe.ba/pdf/Hunger_Strikes_and_Artificial_Feeding_guidance_eng.doc [accessed 15 March 2010]

[v] Nevmerzhitsky v Ukraine (Application no. 54825/00) (2005), cited in Houchin

[vi] The Standard Minimum Rules for the Treatment of Prisoners 1955

54. (1) Officers of the institutions shall not, in their relations with the prisoners, use force except in self-defence or in cases of attempted escape, or active or passive physical resistance to an order based on law or regulations. http://www.unhcr.org/refworld/docid/3ae6b36e8.html

[accessed 15 March 2010]

[vii] The World Medical Assembly Declaration of Tokyo 1975 http://www.cirp.org/library/ethics/tokyo/

[viii] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (1984) Article 4: 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. http://www.unhcr.org/refworld/docid/3ae6b3a94.html [accessed 15 March 2010]

[ix] The World Medical Assembly Declaration of Malta Adopted by the 43rd World Medical Assembly Malta, November 1991, editorially revised at the 44th World Medical Assembly Marbella, Spain, September 1992, revised by the WMA General Assembly, Pilanesberg, South Africa, October 2006

http://www.wma.net/e/policy/h31.htm [accessed 13 March 2010]

[x] Op. Cit. Hernán Reyes

[xi] Nevmerzhitsky v Ukraine cited in Houchin

[xii] Op. Cit. Roger Houchin

[xiii] European Parliament resolution of 11 March 2010 on prisoners of conscience in Cuba EU Document: P7_TA-PROV(2010)0063

8. Urges the EU institutions to give their unconditional support and full encouragement to the launching of a peaceful process of political transition to multi-party democracy in Cuba; http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010-0063+0+DOC+XML+V0//EN&language=EN [accessed 15 March 2010]

[xiv] Commission for Assistance to a Free Cuba U.S. State Department July 2006 http://2005-2009.cafc.gov/rpt/2006/68097.htm [accessed 15 March 2010]

[xv] Tom Crumpacker Planning for the Re-colonization of Cuba 13 July 2006 http://www.counterpunch.org/crumpacker07142006.html [accessed 15 March 2010]

[xvi] Both of these instruments contain the following: Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without

prejudice to any obligations arising out of international economic co-operation, based upon the

principle of mutual benefit, and international law. In no case may a people be deprived of its own

means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the

administration of Non-Self-Governing and Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

http://www.unhcr.org/refworld/docid/3ae6b3aa0.html [accessed 15 March 2010]

http://www.unhcr.org/refworld/docid/3ae6b36c0.html [accessed 15 March 2010]

[xvii] The Vienna Declaration and Program of Action Adopted by the World Conference of Human Rights in Vienna on 25 June 1993 http://www.unhcr.org/refworld/docid/3ae6b39ec.html [accessed 15 March 2010]

[xviii] Op. Cit. Vienna Declaration

[xix] The Siracusa principles on the limitation and derogation provisions in the International Covenant on Civil and Political Rights. United Nations Economic and Social Council Document E/CN .4/1985/4 http://www.unhcr.org/refworld/docid/4672bc122.html [accessed 15 March 2010]

[xx] Eg Pg 45 onwards of the Appeal Decision of the U.S. Court Of Appeals Eleventh Circuit 2005 http://www.ca11.uscourts.gov/opinions/ops/200117176.pdf

[xxi] Four rights are known as peremptory norms of international law, or jus cogens norms. These are the right to life, the right to be free from torture and other inhumane or degrading treatment or punishment, the right to be free from slavery or servitude, and the right to be free from retroactive application of penal laws. The United States and several European countries have been roundly criticised in recent years for their participation in, or allowing their territory to be used for, ‘renditions’, torture, and other illegal activities relating to the so-called War on Terror.

[xxii] And at 39 they state,” A State party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to article 4 (hereinafter called "derogation measures") only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation .

A threat to the life of the nation is one that:

(a) Affects the whole of the population and either the whole or part of the territory of the State, and

(b) Threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognized in the Covenant.”

http://www.unhcr.org/refworld/docid/4672bc122.html [accessed 15 March 2010]

It is undeniable that Cuba found itself in this position following the Revolution on 1959, and Point 8 of the European Parliament Resolution indicates that it remains under this threat to this day.

Julie Webb-Pullman (click to view previous articles) is a New Zealand based freelance writer who has reported about - and on occasion from - Central America for Scoop since 2003. Send Feedback tojulie@scoop.co.nz

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