The right to freedom of thought and the prohibition of torture and cruel, inhuman or degrading treatment or punishment: examining the relationship in the case of the coercive and interrogational use of neurotechnology

The forum internum is a legal concept mainly developed in relation to the right to freedom of thought, conscience and religion. It refers to a person’s inner realm, ‘where mental faculties are developed, exercised and defined’ . This chapter aims to tease out the prohibition of torture’s protection of the forum internum with reference to case law from the European Court of Human Rights, the United Nations Human Rights Committee, and the Inter-American Court of Human Rights. The inclusion of case law from different courts and bodies is not for comparative purposes but rather to identify broader themes which relate to the protection of the forum internum and the permissibility of the involuntary use of neurotechnology against detainees in the context of military interrogations and against suspects in criminal investigations. The neurotechnology referred to here can be described as brain-imaging and includes neuroimaging to detect the recognition of stimuli to reveal information known by the suspect or reveal deception.

By reviewing jurisprudential developments and recent academic scholarship re-orienting the threshold of torture away from the severity of suffering towards the severity of conduct, this chapter identifies ways in which we can approach the question of whether and, if so, when and why the involuntary extraction of information from the mind of a suspect or detainee would amount to a violation of either or both of the right to freedom of thought and the prohibition against torture or cruel, inhuman or degrading treatment or punishment (CIDTP). This question places certain conceptions of the prohibition of torture under strain given, for example, that human rights law in part prohibits torture or CIDTP because of the unlawful levels of pain and suffering that are inflicted. Thus, the law on the prohibition of torture ‘assumes that the interrogator will attempt to overcome the detainee’s will with pain’. But does this liberate the pain-free but coerced interrogational use of neurotechnology from the definitional bounds of the prohibition of torture or ill-treatment? Furthermore, does the ‘expansive’ interpretation of the prohibition of torture or CIDTP encroach into the protective territory of the right to freedom of thought in this context?

The right to freedom of thought and the prohibition of torture or CIDTP are both set out in almost all international and regional human rights treaties drafted and agreed in the post-World War II period. Much of the scholarship on both rights examines or critiques questions of definition and classification. This chapter does not speak to these questions directly but identifies two commonalities between these rights: the first being their shared site of protection as the forum internum; the second being their shared normative underpinnings of dignity, integrity and autonomy. Identifying this common basis might help develop principled guidance on the permissibility of pain-free but coercive and interrogational use of neurotechnology. The chapter provides a contextual overview of the relevant scholarly developments related to the questions set out above. It examines the distinguishing features of the prohibition of torture or CIDTP as they relate to the protection of the mind and brain (the relevant case law does not refer to the concept of the forum internum), and the right to freedom of thought’s absolute protection of the forum internum before exploring how the commonality between these two rights guides the legal position on the coercive and interrogational use of neurotechnology (whether painful or not).

In approaching the human rights protection of the mind in an integrated way, this chapter interrogates the conceptual, normative and doctrinal webs between the right to freedom of thought and the prohibition of torture or CIDTP. The contribution to the literature offered here is, firstly, to call to attention the normative and instrumental relationship between these two rights which the chapter interrogates in the context of the coercive and interrogational use of neurotechnology. Secondly, although the prohibition of torture or CIDTP under some treaties would prohibit the coercive and interrogational use of neurotechnology (despite the absence of pain), this chapter questions whether such protection may be more appropriately sought under the right to freedom of thought. On this second aspect, whilst acknowledging that all rights are interrelated, interdependent, and indivisible, clarity on the delineation between these rights would help develop the latent right to freedom of thought.