John Zarrilli

Document Type

Notes

Publication Date

12-23-2021

Keywords

Third Geneva Convention, Lawful Interrogation, Coercion

Subject Category

Constitutional Law | International Humanitarian Law | Law | Military, War, and Peace

Abstract

Mind-reading is no longer a concept confined to the world of science-fiction: "Brain reading technologies are rapidly being developed in a number of neuroscience fields." One obvious application is to the field of criminal justice: Mind-reading technology can potentially aid investigators in assessing critical legal questions such as guilt, legal insanity, and the risk of recidivism. Two current techniques have received the most scholarly attention for their potential in aiding interrogators in determining guilt: brain-based lie detection and brain-based memory detection. The growing ability to peer inside someone's mind raises significant legal issues. A number of American scholars, especially in the past fifteen years, have debated the constitutionality of forensically employing mind-reading technologies on United States citizens. Almost no scholarly attention, however, has focused on the legality of mind-reading technologies under international humanitarian law.

This Note seeks to fill this gap in the literature and explores whether the administration of mind-reading technologies on a prisoner of war ("POW") in an armed conflict violates international humanitarian law—arguing that an interpretation of coercion more faithful to the text and purpose of Article III would likely permit the application of mind-reading technology during interrogations. Part I briefly lays out the two prevailing interpretations of coercion, noting their implications for the legality of mind-reading technologies, and this Note's interpretation of coercion, which markedly differs from the prevailing interpretations. Part II briefly expands upon the technology discussed in Part I—noting the potential for more accurate mind-reading technology in the future and the applicability of this technology to interrogations. Part III examines current interpretations of the term coercion, formulates a new definition by looking at the text and drafting history of Article 17, and contends that the coercion ban is meant to protect POWs from physical and mental suffering. Part IV then applies this new definition of coercion to various mind-reading technologies, concluding that the painless use of mind-reading technology does not violate Article 17 of Geneva III.

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