The Alien Body in Contemporary Netherlands: Incarceration and Force-feeding of Asylum Seekers

by Patricia Schor and Egbert Alejandro Martina | 14 Oct 2013

Naman Hadi, Le Déraciné. Oil on canvas, 132 x 197cm, 1984

Asylum (n.): early 15c., earlier asile (late 14c.), from Latin asylum “sanctuary,” from Greek asylon “refuge,” noun use of neuter of asylos “inviolable, safe from violence,” especially of persons seeking protection, from a- “without” + syle “right of seizure.” So literally “an inviolable place.” General sense of “safe or secure place” is from 1640s; meaning “benevolent institution to shelter some class of persons” is from 1776.¹

On 22 May 2013, the Dutch State Secretary of Security and Justice and Minister for Migration offered the House of Representatives a memorandum issued by the Council of State² concerning ‘the options to administer food and drink to an alien in detention who is on hunger and/or thirst strike, against his will.’³ This essay sets out to unpack the main premises of these recommendations in the framework of biopolitics, its colonial heritage and contemporary deployment in the Netherlands. Whilst understood in a historical continuum, this little document gains relevance as it represents a significant step over the threshold of the human.

The hurried policy briefing note came to address the mounting hunger strikes of asylum seekers, who have been protesting against being detained, asserting that they are not criminals but asylum seekers and demanding treatment befitting their status. The State Secretary was in a rush to control a potentially explosive situation — the eruption of the dead bodies of aliens in the public sphere — after the suicide of the Russian activist Aleksandr Dolmatov in a Dutch detention centre.⁴ The death of Dolmatov, who had formally applied for political asylum, caused a stir in the Netherlands due to international criticism. In death, Aleksandr Dolmatov became a priority to the Dutch state.

The recommendations of the Council of State, originally issued on May 15, were made in response to the Secretary’s request on May 13 for information regarding, in particular, the ‘possible conflict’ between ‘the state’s plight to care for the “detained alien”’ and their ‘right for respect of one’s private life.’⁵ In the Netherlands, according to Amnesty International, the detention of asylum seekers following the asylum request became a common rather than extraordinary practice. Amnesty points out the fact that vulnerable groups, including minors, are being detained and warehoused and that this regime resembles that of, and in this case is harsher than, common (criminal) detention.⁶

We argue that the status of asylum seekers as ‘detained aliens’ is, in essence, a technique of control. Placing asylum seekers under the category of ‘detainees’ effectively puts them in the hands of the state, which has a ‘strong duty to care’ for persons under its responsibility. Consequently, force-feeding is read as ‘giving care.’ Within this construction, the deprivation of freedom (being detained by the Dutch state) and violence (being subjected to non-consented bodily intervention) are transformed into dutiful benevolence (being cared for by the Dutch state).

It is worth noting that the consideration to force-feed asylum seekers occurs at the same time that asylum seekers are dying at European Union’s borders under the watchful eyes of its surveillance systems, or committing suicide in EU detention centres under conditions of a lack of medical care. This distribution of care is carefully managed.

Despite Dolmatov’s suicide and the reported ‘missteps’ of the Ministry of Justice epitomised by the ‘body-cuffed’ deportation of Cheikh Bah and Issa Koulibaly, two emaciated Guineans after 70+ days of hunger strike, the Dutch state persists in the pursuit of a politics of isolation, incarceration and forceful deportation of undocumented migrants and asylum seekers.

These actions have been object of critique and protest. In respect to force-feeding, we call attention to the stance of physicians’ professional associations. The day after the State Secretary’s request to the State Council, the Royal Dutch Medical Association (KNMG) published an advice note:⁷

Physicians’ Federation KNMG strongly advises physicians not to cooperate with force-feeding. Medical ethics does not give physicians any leeway for treatment by force of a competent patient who can understand the effects of his [sic] refusal of treatment. Thus, the consent of the patient is also required for the administration of food or fluid.

This position, which is shared by the Dutch Human Rights Organization for Health Professionals Johannes Wier Foundation,⁸ was made known to the Minister of Foreign Affairs. It aligns with the position of peers elsewhere as regards force-feeding in Guantánamo Bay.

In 2006, The Lancet published a letter authored by UK and US physicians (and undersigned by 255 peers of several countries) stating that physicians who refuse to respect the prisoners’ informed decision to refuse treatment ‘should be held to account by their professional bodies’ and denounce the practise of screening health-care staff ‘to ensure that they agree with the policy of force-feeding before working in Guantánamo Bay.’⁹

In 2009, Leonard Rubenstein (Physicians for Human Rights) and George Annas (Global Lawyers and Physicians) issued a statement in the same reputable journal:¹⁰

The use of coercion, physical force, or physical restraints to force-feed competent individuals on hunger strike has been condemned by the World Medical Association as a form of “inhuman and degrading treatment” that is prohibited according to Common Article 3.9.

They indicated that,

2 years before physician-assisted force-feeding of individuals on hunger strike at the centre in Guantanamo Bay began, President Bush’s Bioethics Council had described the force-feeding of competent prisoners on hunger strike with the use of restraints and a nasogastric tube as a form of torture.

On 22 May 2013, in conformity with the US political establishment, which has ignored this position, the Dutch Council of State informed the Secretary that the state does have the option of force-feeding detained asylum seekers.

It is not our intention to examine the legality of the document issued by the Council of State; we are not equipped to do so.¹¹ Still, we would like to call attention to some of its important implications.

The short amount of time in which the document was produced, and the circumstances that gave rise to it, created the ideal conditions for the implementation of urgent or extraordinary measures—albeit within the framework of human rights and, in particular, according to European legislation and the Dutch Constitution.

The main concern of the state, it seems, was to establish the lawfulness of force-feeding detained asylum seekers. For the Council, when carried out according to ‘recognised medical standards,’ force-feeding is ‘in principle not deemed inhuman or humiliating.’ The Council acknowledges that it may constitute a limitation of the detainee’s right to their private life (personal autonomy), and a violation of the prohibition of torture. However, the Council indicates that, following European legislation, force-feeding may be performed by the state when exercising its duty to protect the life of those under its care.

The document delves into the procedural requirements to force-feeding with respect to ‘proportionality’, a requirement that may be ignored in cases of thirst-strike, and ‘quality.’ It concludes that regarding the possible incompatibilities between the duty of the state and the prohibition of torture and inhumane and humiliating treatment and the right to one’s private life, the previous prevails. Force-feeding is, thus, rendered acceptable, even when the asylum seeker refuses to undergo the procedure. Following the document, the procedure is set in motion according to the national legal guidelines, whereby the head of the penitentiary institution decides and a physician determines whether they will carry out force-feeding.

The Council does acknowledge the KNMG’s advice not to force-feed in conformity with the guidelines adopted by the World Medical Association. However the state, relying on its Constitution and the legal framework provided by Europe, has effectively greenlit torture. It is only through a political sleight-of-hand, enforced detention and deportation quotas, which stretch the realm of ethics, that the state is permitted to force-feed a detainee against their will. This constitutes effectively what Giorgio Agamben termed the ‘state of exception,’ whereby the fundamental rights of some persons are suspended. In Homo Sacer: Sovereign Power and Bare Life, Agamben points out that,

In such a state of exception, subjection to experimentation can, like an expiation rite, either return the human body to life […] or definitively consign it to the death to which it already belongs. What concerns us most of all here, however, is that in the biopolitical horizon that characterizes modernity, the physician and the scientist move in the no-man’s-land into which at one point the sovereign alone could penetrate. (Agamben 1998, 159)

The correlation between body experimentation in concentration camps, where the physician gained political power through state delegation, and force-feeding in detention is not negligible. In this aberrant situation, it is the individual physician (effectively turned into civil servant) on behalf of the state that has the discretionary power of acting, freed from professional ethics, upon these subjects. The state will search incessantly for such a servant willing to force-feed, until it finds them.

It is critical to pause here to reflect on the current state of the Dutch democracy in its use of extraordinary provisions that annul the rights of some subjects. Analysis of the power of the state to decide who lives and dies has been fundamental to contemporary philosophical critique to the West. A paramount query in this regard is, who are assigned to the ‘category’ of subjects that have served, recurrently and consistently throughout history, as necropolitical objects of state power, which confer upon them ‘the status of living dead’ or of the non-human (Mbembe, 2003).

In Precarious Life. Powers of Mourning and Violence, Judith Butler points to the constitutive relationship between ‘who counts as a human’ and others:

It is not just that some humans are treated as humans, and others are dehumanized; it is rather that dehumanization becomes the condition for the production of the human to the extent that a “Western” civilization defines itself over and against a population understood as, by definition, illegitimate, if not dubiously human. (Butler 2006, 91)

The subject turned into non-person is then free-game. Following Butler, it is those placed outside of the human realm who are rendered object of ‘indefinite detention’ in the ‘contemporary war prison;’ a house to ‘unliveable lives’ (Ibid 2006, xv). The alien, the Muslim, the black, the other, all of whom are already conceived as non-human through what Walter Mignolo defines as ‘epistemic imperial racism,’ are marked for incarceration (Mignolo 2009).

In State of Exception, Agamben calls attention to the Patriot Act and the following ‘military order’ issued by George Bush in 2001, whereby ‘non citizens’ or ‘aliens’ suspected of involvement in terrorist activities could be taken into custody and then detained indefinitely.

What is new about President’s Bush order is that it radically erases any legal status of the individual, thus producing a legally unnameable and unclassifiable being … Neither prisoners nor persons accused, but simply “detainees,” they are the object of a pure de facto rule’. (Agamben 2005, 3)

Agamben argues that the removal of the individual ‘from law and judicial oversight’ can only be compared to the legal situation of Jews in the Nazi Lager (Ibid, 4). However, there is actually an earlier genealogy of bare life, which is found in imperial colonialism. The experimentation with the life of certain human bodies was already an earlier practice in the suspended zone or limit space of the colonies. Mignolo outlines this heritage in Dispensable and Bare Lives — Coloniality and the Hidden Political/Economic Agenda of Modernity:

From the sixteenth century on, epistemic and ontological constructions of racism had two major devastating consequences: the economic and legal/political dispensability of human lives. Dispensable lives were and are either assumed (naturalized “feelings”) or established by decree (laws, public policies). Two human communities that paid the price of economic and political devaluation of human lives were enslaved Africans from the sixteenth to the eighteenth century and German Jews in the twentieth century. (Mignolo 2009, 73–74)

It is in this historical context that the actions of the Dutch state should be understood. The legal move to (un)name and classify detained asylum seekers emerges, then, as the afterlife of imperial colonialism.

The invisibilisation of those relegated to the zone of the non-being (after Fanon [2008]) is a fundamental aspect to (mass) incarceration. For the maintenance of the national myth of a human and humane society, the Netherlands must keep the non-being out of sight. The Dutch state is well aware that the stakes are high regarding what is admitted to or excluded from the public sphere. Asylum seekers on hunger strike are protesting against their physical and metaphorical exclusion from the Dutch public sphere. Their deaths would catapult them into this very anaemic space, however briefly, and disturb the carefully constructed and policed human face of the Dutch nation. Hunger strikes ‘call for’ the application of exceptional rules, for they qualify as acts of resistance to the power of the state.

The tension, on the one hand, between an ethics of care that doesn’t decry death, as is the case with euthanasia in the Netherlands and, on the other, ‘death as protest’ indicates that for asylum-seekers another ethics (or lack thereof) applies. While voluntary death as a means to end suffering is allowed, death as a form of protest is not. Disciplinary power and biopower shape a certain kind of subject and a specific embodied response to power. In the zone of the non-being one’s body is the last, if not only, means to protest oppression, whereby a ‘slow death’ stands for the body’s radicalisation.

The Dutch state does not recognise hunger strike as a valid and deliberate political act, as a refusal to live under intolerable conditions, or as a form of revolutionary suicide that ‘strategically blurs the difference between risking one’s life in order to confront oppressive forces and resolutely taking one’s life in order to end unbearable suffering.’ (Ryan 2000, 391) Under these circumstances (the Dutch state forces asylum seekers to subsist in a ‘space of death’), force-feeding represents a prolonging of suffering (or a staying of death). Force-feeding suggests a desire for their continued existence — however, outside of the Netherlands.

In her essay Slow Death, Lauren Berlant discusses David Harvey’s Spaces of Hope and the ‘rationalization of health.’ (Berlant 2007) She offers ‘a development in the ways we conceptualize contemporary historical experience, especially when that experience is simultaneously at an extreme and in a zone of ordinariness, where life building and the attrition of human life are indistinguishable.’ (Ibid, 754) On the one hand asylum seekers may be force-fed (which is ‘life building’) and on the other, asylum seekers are dying at the EU border or, when they manage to enter Europe, they are kept at the margins of living.

The ‘flourishing’ of the Dutch nation is already premised on the deaths of undocumented migrants and the disposability of their humanity. The political work that asylum seekers as necropolitical subjects, or those ‘condemned’ to death, perform is multifaceted and obscured. The incarcerated and dead bodies of undocumented migrants may, in fact, assuage the general sense of vulnerability as the financial crises deepen; after all there are still people who are willing to risk life and limb for our freedoms and our way of life.

The Netherlands has one of the most stringent immigration and asylum control legislations in the Western world, and tight border control has increased the coercive capacities of the Dutch state. The incarceration of asylum seekers and undocumented migrants occurs on a systematic basis. It is made possible because these subjects are racialised and form a countless multitude, which seemingly pose a threat to Dutch society. At the same time asylum seekers are critical political assets for the Dutch state. They must exist, but only as bare and disposable lives, as regulated alien bodies.

Patricia Schor (Utrecht University) & Egbert Alejandro Martina (Medicate)

Bibliography

—Agamben, Giorgio. 1998. Homo Sacer: Sovereign Power and Bare Life. Trans. Daniel Heller-Roazen. Stanford, California: Stanford U Press. Print.
—Agamben, Giorgio. 2005. State of Exception. Trans. Kevin Attell. Chicago and London: The U of Chicago Press, 2005. Print.
—Berlant, Lauren. 2007. “Slow Death (Sovereignty, Obesity, Lateral Agency).” Critical Inquiry 33 (4): 754–780. Print
—Butler, Judith. 2006. Precarious Life. Powers of Mourning and Violence. London and New York: Verso. Print.
—Fanon, Frantz. 2008. Black Skin, White Masks. Trans. Charles Lam Markmann. London: Pluto Press. Print.
—Mbembe, Achille. 2003. “Necropolitics.” Trans. Libby Meintjes. Public Culture 15 (1): 11–40. Print.
—Mignolo, Walter. 2009. “Dispensable and Bare Lives — Coloniality and the Hidden Political/Economic Agenda of Modernity.” Human Architecture: Journal of the Sociology of Self-Knowledge VII (2): 69–88. Print.
—Ryan, Katy. 2000. “Revolutionary Suicide in Toni Morrison’s Fiction.” African American Review 34 (3): 389–412. Print.

1
http://www.etymonline.com/index.php?term=asylum&allowed_in_frame=0 accessed on 23 September 2013.
2
‘The Council of State is an independent consultant to the government on legislation and governance and the overall highest administrative court in the Netherlands.’ http://www.raadvanstate.nl/over-de-raad-van-state.html accessed on 24 September 2013. This translation of a text from a Dutch source, and the following ones, are ours.
3
“Voorlichting Raad van State over de mogelijkheid van dwangvoeding bij hongerstakers en/of vochtweigeraars” http://www.rijksoverheid.nl/documenten-en-publicaties/kamerstukken/2013/05/23/voorlichting-raad-van-state-over-de-mogelijkheid-van-dwangvoeding-bij-hongerstakers-en-of-vochtweigeraars.html accessed on 24 September 2013.
4
According to the current affairs program Nieuwsuur, immediately after the recommendations of the Council of State, the Ministry of Security and Justice sought out a physician who was willing to force-feed the asylum seekers on hunger strike in the Justitieel Medisch Centrum in The Hague. http://nos.nl/artikel/509323-dwangvoeding-hongerstaker-mag.html accessed on 24 September 2013.
5
We are opting for gender-neutral language throughout the text, i.e. the use of ‘they’ for both singular and plural forms according to Jamila Stevenson’s guidelines “Using Gender-Neutral Language in Academic Writing” http://www.warren-wilson.edu/~writingcenter/Gender-Neutral_Language.pdf accessed on 26 September 2013.
6
“Vreemdelingendetentie in Nederland: het moet en kan anders” http://www.amnesty.nl/mensenrechten/dossiers/vreemdelingendetentie#rel0-nieuws accessed on 10 September 2013. As we write the Dutch state announced a planned reform to the system, characterized however by Amnesty International as vague and disappointing. http://www.amnesty.nl/nieuwsportaal/nieuws/plannen-teeven-te-weinig-en-te-vaag accessed on 13 September 2013.
7
http://knmg.artsennet.nl/Nieuws/Nieuwsarchief/Nieuwsbericht-1/Arts-mag-niet-meewerken-aan-dwangvoeding.htm accessed on 24 September 2013.
8
http://www.johannes-wier.nl/content.php?page=5 accessed on 10 September 2013.
9
“Forcefeeding and restraint of Guantanamo Bay hunger strikers” http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(06)68326-8/fulltext accessed on 24 September 2013.
10
“Medical ethics at Guantanamo Bay detention centre and in the US military: a time for reform” http://www.thelancet.com/journals/lancet/article/PIIS0140-6736(09)60873-4/fulltext
11
For a legal analysis of the document, see Pauline Jacobs’ article in the Dutch lawyers’ Blog: http://njblog.nl/2013/06/05/dwangvoeding-aan-gedetineerden-in-hongerstaking/ accessed on 24 September 2013.