Incidental yet Monumental: Incorporating Mental Health Impacts into IHL Proportionality Assessments
April 7 marks World Health Day and this year the World Health Organisation is using the day to draw attention to global mental health concerns, including the devastating impact of the Syria conflict. Such an important moment should facilitate greater reflection by the humanitarian community in terms of preventing, limiting and responding to mental health impacts during war, and this conversation should also include legal assessments and applications.
“… many children are living in an almost constant state of fear, terrified by shelling, airstrikes and ongoing violence, with devastating psychological consequences”, was just one of the central findings of a recent report undertaken on Syrian refugees by Save the Children.
Beyond physical harm, armed conflict causes considerable mental health impact and trauma, as evidenced by Save the Children’s recent study. The report speaks of prevalent toxic stress amongst refugees, with just one key finding being that “84% of adults and almost all children believe ongoing bombing and shelling is the number one cause of psychological stress in children’s daily lives.” The report is one of many, from a whole host of conflicts, which have all documented the breadth and depth of mental health implications for those caught up in armed conflict. Just a few examples include the psychological impact of drone strikes in Pakistan, the effect of trauma on mental health in Gaza, and the impact of the war in Kosovo on mental health. Whilst the availability of data relating to mental health during armed conflict is increasing, however, it is far from systematic.
It is important to note that the psychological impacts of armed conflict are most commonly examined from a medical or public health perspective and their relevance to international humanitarian law (IHL) is often overlooked. Accordingly, this blog assesses the extent to which international humanitarian law adequately addresses mental health concerns, particularly when addressing incidental mental harm. The blog represents a preliminary assessment, and explores some of the issues and challenges that warrant further exploration.
IHL and Mental Health
Recent decades have witnessed many important developments in the mental health field, including a broader understanding and medical classification of a range of conditions, including PTSD. Whilst many concepts of IHL date back to moments prior to these developments, some notions of mental harm are still included or alluded to in some treaty provisions on IHL. These include Article 33 of the Fourth Geneva Convention which prohibits collective punishment, inclusive of measures of “intimidation” and “terrorism”. In even starker terms, Article 51(2) of the First Additional Protocol prohibits “all acts or threats of violence the primary purpose of which is to spread terror”.
Such provisions demonstrate that on some level mental harm is an aspect of human life that IHL is not only willing to address but also looks to limit. Whilst there are only a few specific provisions of IHL that appear to directly relate to mental harm, many general principles, as well as provisions of IHL may raise further considerations and reflections vis a vis mental health.
Some of the most devastating moments for civilians in conflict occur when there are not directly targeted but are harmed or killed resulting from an attack against a lawful military object. Under the rule of proportionality, for instance, IHL countenances that some civilian harm may be acceptable and only prohibits conduct in which the level of anticipated civilian harm is disproportionate in relation to the projected military advantage. Proportionality is often seen as one of the most challenging rules of IHL to conceptualise. Whilst relatively clear textually, application of this rule is inherently beset with difficulties, driven by a conceptual challenge of balancing two unrelated concepts – anticipated military advantage and civilian harm – disparate in value and weighting.
In proportionality assessments, the question naturally arises of what counts as civilian harm, and how it should be assessed. In order to make an appropriate judgment, the argument goes that a soldier must consider all facets of civilian harm, physical and mental. Yet beyond stating that it includes death and injury, there is in fact very little literature and assessment of what it amounts to and includes. This is a significant gap, since holistic assessment of civilian harm may limit, even to a small degree, certain attacks from taking place, and have the impact of lowering civilian casualties in conflict. This would remain in line with the spirit and scope of the law, not a broadening, but rather a more comprehensive and coherent understanding of it. The flip side of this argument would be a reluctance of applying any interpretation which would limit or be seen to tie the hands of the military.
Broader implications for international law
Such issues and questions which arise from such a discussion may impact on other notions of IHL such as an appropriate understanding of the term “unnecessary suffering” under Article 35 of Additional Protocol I. In addition, such reflections are by no means limited to notions of IHL, but can certainly apply to also concepts and norms set out under international law. By way of examples, the level of incorporation of mental health considerations into notions such as torture, persecution, and elements of genocide, would be worthy of exploration.
Key Challenges and Issues
Positing the argument that incidental mental harm is an appropriate aspect of civilian harm within a proportionality assessment, does not mean this approach is not without legitimate concerns. In particular, there would likely be a concern that the inclusion of certain mental health assessments may stretch the application of the law in a manner where militaries simply don’t believe it is realistic. This issue along with concerns over the measurability, foreseeability and level of seriousness of mental harm, warrant further exploration and assessment.
Is mental health harm measurable?
One concern or challenge raised when posing the question of addressing incidental mental harm is the question of whether this harm is in fact measurable. Without tangibility, how can a soldier and/or their superior apply an appropriate value to the civilian harm notion under any proportionality assessment?
It can be argued that conceptually this issue has already been addressed in several provisions, for example by prohibiting intentional terror under Article 51(2) of the First Additional Protocol. In addition, the Convention Against Torture clearly states that the term "torture" includes both severe physical or mental harm. Therefore, we can conclude that both human rights law and IHL have already demonstrated the willingness and feasibility of covering aspects of mental harm within legal frameworks. Consequently, if a form of intentional mental harm is deemed as definable, why not indirect mental harm within the proportionality construct?
Ultimately, mental health is measurable and verifiable, just like physical harm and should be key, if not central, facet of human rights or humanitarian protection. There are remaining challenges unique to mental health which still need to be considered, such as the time lag before symptoms present themselves.
Are the mental health impacts of hostilities in any way foreseeable?
A second key challenge relates to the foreseeability of mental harm. The law specifically demands that a commander has some awareness of the possible impacts of a given attack, in order to assess the anticipated civilian harm and weigh this against the anticipated military advantage. In the case of mental harm, one may rightfully posit, ‘are we asking every commander to be a psychiatrist’? One of the biggest challenges in providing any form of objective framework for mental health impact is that there will likely be a number of characteristics which make certain individuals more vulnerable to mental harm, which may not be the case (at least to the same extent) with physical harm. These include biological and psychosocial factors, cross referenced with vulnerability and preventive factors, each specific to each condition.
In contrast, physical harm is generally more predictable. For instance, when testing the utility of a weapon or weapons system, militaries undertake certain ballistic tests which provide relevant data for commanders in the field, including the likely harm that could be caused by a given weapon, given the specific conditions at the time of attack. Different sizes and forms of soap blocks are regularly used to assess wound impact, for example, replicating to some extent the likely impact of a bullet on different physiological variations.
The challenge when moving to mental health impact is that the same cause and effect model simply would not work. In the same way militaries invest in weapons development and studying their likely physical harm to human subjects or infrastructure, they could also invest in more research into the mental harm caused by the use of certain weaponry. Such a discussion leads to another area of IHL, that being the prohibition on unnecessary suffering and superfluous injury, which would be another provision worthy of exploration in relation to mental health dynamics.
Moving forward, the biggest challenge and research gap is analysing the link, even if tentative, between specific means and methods of warfare on one hand, and specific patterns of mental health impact on the other. This may require more research and an assessment of conflict typologies and the harm created historically, to then shape the likely harm expected when faced with similar contexts. For example, if a besieged population faces ten days of continuous mortar fire, what psychological impacts are likely to result? How might these impacts differ in other conflict settings? How will age, gender and culture influence the mental health impact?
From a public health perspective, it would be important to have a better understanding of how different conflict typologies and other relevant factors including population density and levels of resilience impact on mental health in different ways. This information could then help to better inform the conversation from an IHL perspective in relation to incidental harm and developing a more informed insight into drawing conclusions in relation to the anticipated impact.
It is important to note that the lack of absolute clarity and tangibility isn’t necessarily a significant setback, in fact it very much fits into the understanding of proportionality which by design is characterized by intangibles, as the law looks to address anticipated harm. Therefore, having a projection of the likely harm caused could be considered sufficient.
Can we define the level of severity of mental harm?
A further challenge is that not all forms of mental suffering can be covered within the notion of incidental mental harm, however problematic. Armed conflict by its very nature causes an array of mental suffering, and at best IHL could only ever look to consider the more serious forms of mental harm. Therefore, how can we look to assess which forms of mental harm are, or are not included?
One possible starting point for discussion, in order to separate less serious mental harm from the more serious, could be to take the example of PTSD, which clinically speaking requires that the symptoms occur for more than one month. Would mental health impacts lasting more than a month be considered severe enough to be constitute significant or severe mental harm? Moving forward, it is important that leading health practitioners be consulted to help set out other relevant criteria that could be used to identify the more serious types of mental harm worthy of legal adjudication. Another project which in the past looked to take medical data and interpret it for the purposes of IHL was the SIrUS project which looked to provide objective wound injury classifications as a basis for classifying a weapon as causing unnecessary suffering and superfluous injury and hence illegal. This at least suggests that there is some scope and interest in attempting to use medical data as a definitional basis for terms set out under IHL.
The exploration of the role of mental health in assessing civilian harm under IHL certainly appears deserving of more scrutiny. This article merely touched upon a few facets that arise when looking at the arguments for and against incorporating incidental mental harm within a proportionality assessment. There is both a clear gap in research as well as acceptance of its relevance by military actors.
Any consideration of incidental mental harm in any proportionality assessment during the conduct of hostilities would not look to prevent all incidental harm, but rather explore the extent that such harm should be minimized. IHL does represent a balance between humanity and military interests, but in order to be a fully functioning, modern and appropriate legal body, more analysis needs to be undertaken to ensure that all facets of civilian harm are appropriately considered. This will help to shape a more coherent legal framework which provides better protection for civilians in armed conflict.
Senior Legal Researcher
Stephen Wilkinson is a senior legal researcher with the Advanced Training Program on Humanitarian Action, specializing in international humanitarian law (IHL) and human rights in armed conflict. Previously he was a Legal Officer with the United Nations, a Legal Advisor with the Diakonia International Humanitarian Law Resource Center in Jerusalem and researcher with the Geneva Academy of International Humanitarian Law and Human Rights. He has engaged in numerous projects with both the United Nations and academic bodies relating to the monitoring and investigation of international humanitarian law. Other previous work includes time in Cambodia as a legal researcher on child sexual violence and for the United Nationals Relief and Works Agency in Lebanon. He has also engaged in recent consultancies addressing IHL and human rights issues in Syria and Mali. He holds an LL.M (distinction) from the Geneva Academy of International Humanitarian law and Human Rights, as well as an LL.B (hons) from the University of Leeds. In addition he is a PhD candidate at the University of Geneva. He has also previously worked with us on the MRF project.