Abstract
In recent years, much effort has been made, in different forums, to clarify some of international humanitarian law’s (IHL) vaguer standards. However, little attention has been given to the meaning of the concept of civilian harm. This chapter seeks to contribute to the understanding of harm by exploring, in a preliminary manner, an uncharted question: the issue incidental mental harm under the proportionality principle of jus in bello. The chapter asks first whether the inclusion of incidental mental harm in the proportionality calculus is a utopian suggestion, upsetting the delicate balance of IHL. It thereafter exemplifies IHL’s seeming blind-spot with regard to the issue, concluding that the lack of direct treatment of the concept does not amount to its negation. The chapter then critically explores possible challenges to the recognition of incidental mental harm, positing that these are not convincing. All in all, the chapter asserts that it is high time that states, commanders, judges and fact-finding missions take incidental mental harm seriously, if IHL is to maintain its integrity as a legal field setting out to minimize civilian harm.
Eliav Lieblich is Lecturer (Assistant professor), Interdisciplinary Center Herzliya (IDC), Radzyner Law School. JSD, LLM, Columbia Law School; LLB, Hebrew University of Jerusalem.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Living under drones: death, injury and trauma to civilians from US drone practices in Pakistan, Stanford Law School and New York U Law School, 2012, pp. 103–117.
- 2.
ibid., pp. 80–88.
- 3.
ibid., pp. 103–124.
- 4.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (hereinafter API), Article 48.
- 5.
See generally Dinstein 2010, pp. 4–6.
- 6.
On chivalry see Solis 2010, pp. 5–6.
- 7.
API, Article 51(5)(b).
- 8.
- 9.
See generally Meron 2000a.
- 10.
See eg Addison et al. 1870, pp. 4–7, 2–22
- 11.
Indeed, understanding proportionality requires the clarification, for instance, of the temporal scope of harm (whether only short-term, or rather long-term harm is addressed) and its separate or cumulative nature. See, respectively, McCormack and Mtharu 2006, pp. 9–10 (addressing the question in the context of explosive remnants of war); ICTY Prosecutor v. Kupreskic (Judgement) [2000] IT-95-16-T, p. 526 (resorting to the residual Martens Clause in the context of this question).
- 12.
See UCDP/PRIO 2009.
- 13.
For instance, asymmetry is a common characteristic of counterinsurgency scenarios. US Army and Marin Corps 2006, pp. 1–2.
- 14.
See eg, Schmitt 2007, pp. 22–23. This is not to say that the question does not have possible implications in the context of international armed conflicts—to the extent that the latter are conducted in the proximity of civilian population. For an example see ibid., pp. 23–39.
- 15.
See Melzer 2009, p. 15.
- 16.
See Tirosh 2012, pp. 295–300.
- 17.
For a basic discussion see Brain 2002, pp. 15–17.
- 18.
Comparable claims are made in tort law, with regard to the traditional distinction between physical and emotional harm in some jurisdictions for the purpose of tort liability. See Grey 2011.
- 19.
Brain 2002, pp. 17–18.
- 20.
For instance, most (if not all) “bodily” harm can be identified by simple visual analysis conducted even by non-specialized personnel. Identifying mental harm, conversely—and as we shall discuss later on—requires expertise and time; it could be thus argued that mental harm is harder to attribute to a specific event. Compare Restatement (Third) Ch. 2, §4 Comment (b).
- 21.
See Luban and Shue 2012, pp. 829–830 (“we doubt that asking what pain is ‘at root’ will shed light on the law, which operates in theoretical shallows, using ordinary language categories”).
- 22.
- 23.
See eg ICJ, Legality of Threat or Use of Nuclear Weapons (Advisory Opinion), 1996 ICJ Reports 226, para 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) 2004 ICJ 136, para 106; ICJ, Armed Activities on the Territory of the Congo (DRC v. Uganda) 2005 ICJ Reports 168, paras 216–220; Human Rights Committee (2004) General Comment 31, CCPR/C/21/Rev.1/Add.13, para 11; ECtHR, Al-Skeini v. UK App No 55721/07 [2011].
- 24.
International Covenant on Economic, Social and Cultural Rights 1966, Article 12(1); see also Committee on Economic, Social and Cultural Rights 2000, General Comment 14, UN Doc E/C.12/2000/4 (Aug. 11, 2000); GA Res 46/119 (1991) The Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, UN Doc A/RES/46/119.
- 25.
General Comment 31, para 10.
- 26.
Compare Al-Skein v. UK 2011 (Concurring Opinion of Judge Bonello).
- 27.
These are generally the rules found in API, Articles 48–59, and their counterparts under customary international law. One of the key distinctions between IHRL and IHL has to do with the acceptability of collateral damage, a concept which is all but absent from the IHRL paradigm. See Meron 2000b, p. 240; but see Hakimi 2012, p. 1371 note 18. On the concept of IHRL/IHL lex specialis see Solomon 2011, pp. 79–80.
- 28.
See Schmitt 2010.
- 29.
Walzer argued, for instance, that imposing radical limitations on the use of force in jus in bello can essentially amount to pacifism. Cf Walzer 2004, pp. 13–14.
- 30.
- 31.
See eg Richemond-Barak 2011, p. 106, 119.
- 32.
Cf Schmitt 2007, p. 22, 27.
- 33.
- 34.
See Muzenović Larsen 2012, p. 124.
- 35.
API, Article 51(5)(b).
- 36.
See discussion, at Sect. 7.4.1.
- 37.
See Schmitt 2013, p. 33 (“a decline in civilian morale is not to be considered collateral damage in the context of … the rule of proportionality.”).
- 38.
Compare the “ripple effect” concern as grounds for limiting liability for pure economic loss resulting from negligence. See Rabin 2006, p. 862.
- 39.
See Schmitt 2007, pp. 22–23.
- 40.
See eg Banks 2011, pp. 1–2.
- 41.
See Schmitt 2004, p. 510.
- 42.
See Gelkopf et al. 2008.
- 43.
See eg Schmid 2011, pp. 1–3.
- 44.
Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging [2011] STL-11-01/I/AC/R167bis , paras 85, 88–100; cf Ambos 2011, pp. 665–675.
- 45.
For instance, even the Goldstone Report recognized that the wide psychological trauma caused to Israeli civilians by rockets launched from Gaza must be accounted for as a possible war crime; however this fact did not seem to play a part in its analysis of the Israeli military response. See Human Rights Council (2009) Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc A/HRC/12/48, paras 1653–1658 (hereinafter Goldstone Report).
- 46.
Report of the Secretary-General’s Panel of Inquiry in the 31 May 2010 Flotilla Incident (2011), para 71 (“[t]he enormity of the psychological toll on the affected population cannot be underestimated … It seems obvious that stopping these violent acts was a necessary step for Israel … ”). For this understanding of the Palmer Report see Solomon (2012) The Recent European Court of Human Rights Judgment in the Finogenov Case: Towards an Esoteric Humanization of Warfare. 11 Berkeley Journal of International Law PUBLICIST at http://bjil.typepad.com/publicist/2012/04/the-recent-european-court-of-human-rights-judgment-in-the-finogenov-case-towards-an-esoteric-humanization-of-warfare.html.
- 47.
Melzer 2009, p. 47, pp. 49–50.
- 48.
These suggestions are worthy of further exploration, beyond the scope of this chapter. Therefore, they are mentioned here only in a non-exhaustive manner.
- 49.
I specifically reserve the complex question of protection of one’s “own” civilians as a valid military advantage, in particular when balanced against civilian harm to “enemy” civilians. See generally Luban 2011.
- 50.
For the classic statement of this idea see Dworkin 1986, pp. 176–224.
- 51.
As we shall later detail, it is unsurprising that mental harm was not clearly addressed in early IHL, considering that the idea of mental harm, as a concrete phenomenon, has developed in a later period.
- 52.
See Kolb 2012, p. 25.
- 53.
General Orders No. 100 (1863) Instructions for the Government of Armies of the United States in the Field, Article 15 (emphasis added).
- 54.
Ibid. See also ibid., Articles 16, 17. 22.
- 55.
At the time, the notion of “enemy” included the civilian population of the hostile state/belligerent, which as such could be “subjected to the hardships of the war.” Ibid., Article 21.
- 56.
Convention (IV) Respecting the Laws and Customs of War on Land. The Hague, 18 October 1907, Articles 23(g), 25.
- 57.
See Meron 2000b.
- 58.
Respect for the person has been already laid down, in the context of prisoners of war, in the 1929 Geneva Convention on prisoners of war. See Pictet 1958, p. 201.
- 59.
Convention (IV) Relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949, Article 27 (hereinafter GCIV) 27 (emphasis added). Article 27, arguably, applies to all instances of hostilities, not only during occupation. See ICRC 2012 p. 10. 12.
- 60.
Ibid, Article 33.
- 61.
GCIV Article 3 (common to the Geneva Conventions) (prohibiting, inter alia, violence “to life and person” and “outrages upon personal dignity”).
- 62.
Pictet 1958, p. 201.
- 63.
Ibid., p. 201.
- 64.
API, Article 51(2).
- 65.
The ICTY in the Galić case ruled that “acts or threats of violence,” in this context, means “attacks or threats of attacks.” ICTY, Prosecutor v. Galić (Judgement) [2006] IT-98-29-A, para 102 (hereinafter Galić).
- 66.
Ibid., For a similar approach see Schmitt 2013, p. 108.
- 67.
Note, however, that the ICTY Appeals Chamber concluded that Article 51(2) in its entirety reflected customary international law at the time of API’s adoption. The Appeals Chambers found evidence for this perception, for instance, in Article 22 of the non-binding Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare (1923); the 1938 Draft Convention for the Protection of Civilian Populations against new Engines of War; and Article 33 of GCIV. Galić, paras 87–90. It further found evidence for the criminalization of intentional terror as early as 1919. See ibid., para 93.
- 68.
Sandoz et al. 1987, p. 618.
- 69.
Ibid. Note, however, that the requirement that an act offer a “substantial military advantage” in order to justify “spreading terror” actually alludes, albeit vaguely, to a proportionality-based approach: the military advantage must be “substantial” for the act not to be considered as one “primarily” meant to spread terror.
- 70.
- 71.
See infra, Sect. 7.4.1.
- 72.
See supra, text accompanying notes 53–57.
- 73.
API, Article 51(5)(b).
- 74.
Ibid.
- 75.
API, Article 57(2)(ii)–(iii).
- 76.
Sandoz et al. 1987, p. 684.
- 77.
Henkaerts and Doswald Beck 2005, Rule 14.
- 78.
Germany, Bundesminsterium der Verteidigung (2013) Humanitäres Völkerrecht in bewaffneten Konflikten—Handbuch, paras 512–513.
- 79.
US Army (1956) The Law of Land Warfare, para 41.
- 80.
Royal Australian Air Force (2004) Operations Law for RAAF Commanders , pp. 50–51.
- 81.
Australian Defense Force (2006) Law of Armed Conflict, para 2.8; Canada, Office of the JAG (2003) Law of Armed Conflict at the Operational and Tactical Levels, para 413 (hereinafter Canada); US Navy 2007, Marine Corps and Coast Guard (2007) The Commander’s Handbook on the Law of Naval Operations, para 8.3.1.
- 82.
Canada, para 4.
- 83.
UK Chiefs of Staff (2004), The Joint Service Manual on the Law of Armed Conflict, para 5.33.4.
- 84.
US Chairman of the Joint Chiefs of Staff 2009, p. D-C-1.
- 85.
B’Tselem, 2013, The Sonic Booms in the Sky over Gaza. www.btselem.org/gaza_strip/supersonic_booms. (Accessed June 3 2013).
- 86.
HCJ, Case 10265/05 Physicians for Human Rights v. Minister of Defense [2008].
- 87.
For this position, see B’Tselem, supra n. 85.
- 88.
Physicians for Human Rights, State’s Response paras 69–71 (in Hebrew).
- 89.
Ibid., paras 96–102.
- 90.
The State discussed this issue assuming arguendo that causing sonic booms can be qualified as an “attack” and thus subjected to proportionality analysis, although this was not its position. Ibid., para 152.
- 91.
Ibid., paras 118–144.
- 92.
Schmitt 2013, pp. 160–161. Note, however, that the Manual did not expressly exclude serious cases of mental harm. On deprivation of functionality see ibid., pp. 108–109.
- 93.
Writ Petition No. 1551-P/2012 (2013) Peshawar High Court, Judgment of 11 April 2013.
- 94.
Ibid. para 22.
- 95.
Ibid., para 3.
- 96.
Ibid., para 14.
- 97.
Living Under Drones, supra n. 1.
- 98.
Independent International Fact-Finding Mission on the Conflict in Georgia (2009) Report, p. 322.
- 99.
Goldstone Report, paras 1252–1267, 1653–1658.
- 100.
Ibid., paras 1300–1335, 1598, 1689.
- 101.
Human Rights Council (2013) Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/22/59, para 127, paras 134–135.
- 102.
See eg Barak 2005, pp. 88–90.
- 103.
Vienna Convention on the Law of Treaties 1969 (hereinafter VCLT), Article 31(1).
- 104.
See eg Desmond 2006.
- 105.
See eg Peterson et al. 2008, p. 152.
- 106.
See Barak 2005, p. 106 (the range of semantic possibilities “includes the language’s totality of meanings”).
- 107.
VCLT, Article 31 (“[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”).
- 108.
See eg Meron 2000a.
- 109.
Schmitt 2013, p. 108 (emphasis added).
- 110.
Galić, para 102.
- 111.
The Merriam-Webster Dictionary.
- 112.
In another (related) context, Luban and Shue call this bias against mental pain and suffering “the materialist bias.” Luban and Shue 2012, p. 842.
- 113.
Ibid., p. 850.
- 114.
API, Article 51(2); Dinstein 2010, p. 126; see also Galić, para 104.
- 115.
Ibid.
- 116.
See discussion infra Sect. 7.4.2; likewise, the ICRC Study on Customary IHL, when exemplifying acts that amount to spreading terror, refers to conducts that also cause direct physical harm such as “rape” and “mass killing.” Henckaerts and Doswald Beck 2005, rule 2. On the bias reflected in tying mental harm with physical harm see Luban and Shue 2012 pp. 844–845.
- 117.
Galić, para 107.
- 118.
Ibid.
- 119.
Ibid. The Tribunal noted that the attacks were numerous, but not consistently intensive enough to suggest an attempt to destroy or “deplete” the civilian population. The random nature of the attacks, combined with the absence of a discernible military advantage, led the Tribunal to the “reasonable” conclusion that the primary purpose of the SRK’s actions was to spread terror.
- 120.
Ibid., para 104.
- 121.
See Kolb 2012, pp. 25–40.
- 122.
See eg Wertheimer 2012, p. 19.
- 123.
- 124.
Keane et al. 2009, p. 2.
- 125.
Restatement (Second) §436A.
- 126.
See infra, Sect. 7.4.4.
- 127.
Chronic pain is an especially vexing phenomenon, since it is not a “reliable indicator of tissue damage.” See Lumley et al. 2011 p. 943.
- 128.
See supra, text accompanying notes 17–19.
- 129.
See eg Blum 2013, pp. 419–420.
- 130.
Sandoz et al. 1987, p. 685.
- 131.
Henckaerts and Doswald-Beck 2005, Practice, Ch. 4, paras 16 –162, 184; see also Hays-Parks 1990, p. 172.
- 132.
- 133.
Compare eg Lepsius 2006, pp. 766–772 (discussing the annulment, by the Federal Constitutional Court of Germany, of a law which allowed the German executive to shoot down a hijacked jet in order to save lives in light of violations of the right to life and human dignity); See BVerfg, 1 BvR 357/05 [2006].
- 134.
As noted later on, while the role of PTSD in the determination of mental harm would not appear novel to tort lawyers, it has not yet trickled to the IHL discourse. See Restatement (Third) Ch. 8 §47 Reporters’ Note on Comment b. (“Greater rigor in diagnosing emotional harm can be traced to 1980 when the Diagnostic and Statistical Manual of Mental Disorders (DSM-II) recognized post-traumatic stress disorder (“PTSD”) and provided diagnostic criteria for it.”).
- 135.
American Psychiatric Association 2013, pp. 271–280 (hereinafter DSM-5).
- 136.
Ibid. p. 271.
- 137.
Ibid. p. 274.
- 138.
Ibid. p. 271.
- 139.
Ibid.
- 140.
Ibid. pp. 271–272.
- 141.
Ibid. p. 272.
- 142.
Ibid, Note that PTSD also requires that the condition is not attributable to physiological effects of a substance (such as medication) or another medical condition. See ibid. Moreover, DSM-5 introduced specific criteria for PTSD among children 6 years old and younger. Ibid. 272–274.
- 143.
Keane et al. 2009. p. 3; see also DSM-5, p. 276.
- 144.
See Lykes and Mersky 2006, p. 594.
- 145.
For instance, in 1989 the US Department of Veterans Affairs established the National Center for PTSD, http://www.ptsd.va.gov/about/mission/history_of_the_national_center_for_ptsd.asp.
- 146.
See eg Fuller 1969, pp. 63–65.
- 147.
See eg IACtHR, Velásquez Rodríguez v. Honduras, Compensatory Damages [1989] (Ser. C) No. 7 (1990), paras 50–51.
- 148.
See eg Heller 2011, pp. 326–327, p. 377 2002, p.56.
- 149.
See infra.
- 150.
Wes shall discuss here only the former two, since there is significant overlap with the latter. It is also worthwhile to mention that when violations of Article 3 Common to the Geneva Conventions were placed within the jurisdiction of the ICTR, the wording of that article was extended to include “violence to life, health and physical or mental well-being” of persons rather than just “violence to life and person” as is in the original phrasing. Statute of the International Criminal Tribunal for Rwanda 1994 (hereinafter ICTR Statute), Article 4(a).
- 151.
Convention on the Prevention and Punishment of the Crime of Genocide Convention 1948 (hereinafter Genocide Convention), Article II(b); Statute of the International Criminal Tribunal for the Former Yugoslavia (1993) (hereinafter ICTY Statute), Article 4(2)(b); ICTR Statute, Article 2(2)(b); Rome Statute of the International Criminal Court (1998) (herinafter ICC Statute), Article 6(b).
- 152.
Nor is it elaborated upon in the ICC’s Elements of Crimes. International Criminal Court, Elements of Crimes 2000, p. 6.
- 153.
Jessberger 2009, p. 98.
- 154.
See ICTY Prosecutor v. Krstic [2001] IT-98-33 (hereinafter Krstic), para 510.
- 155.
Gorove 1951, pp. 176–178 (discussing Chinese allegations, during the drafting of the Convention, that Japan committed genocide in China by spreading opium). It should be noted that some states saw the inclusion of mental harm as redundant since physical integrity included also mental integrity, which of course supports the argument of this chapter. Ibid., p. 180.
- 156.
Krstic, paras 510–513; ICTR Prosecutor v. Kajelijeli [2003] Case No. ICTR-98-44A-T, para 815; ICTR, Prosecutor v. Kayishema [1999] Case No. ICTR-95-1-T, para 113.
- 157.
Compare Jessberger 2009, p. 99.
- 158.
See eg Prosecutor v. Akayesu [1998] Case No. ICTR-96-4-T, paras 503–504; ICTR, Prosecutor v. Musema [2000] Case No. ICTR-96-13-A para 156; ICTR, Prosecutor v. Rutaganda [1999] Case No. ICTR-96-3-T, para 50.
- 159.
ICTR, Prosecutor v. Seromba (Appeals Chamber Judgement) [2008] Case No. ICTR-2001-66-A (hereinafter Seromba), paras 45–47 (overruling the Trial Chamber’s conclusion that Seromba caused serious mental harm to Tutsi refugees in a church by prohibiting them from accessing a banana plantation, refusing to celebrate mass for them, and expelling them from a parish); see also ICTR, Prosecutor v. Ntawukulilyayo [2010] Case No. ICTR-o5-82-T, para 452. This understanding of mental harm corresponds with the view of the Preparatory Committee of the International Criminal Court; Report of the Preparatory Committee on the Establishment of an International Criminal Court 1998, Part 2: Jurisdiction, Admissibility and Applicable Law, UN Doc A/CONF. 183/2/Add.1, p. 11; see also ICTY, Prosecutor v. Blagojevic [2005] IT-02060-T, para 645.
- 160.
Seromba, paras 47–48.
- 161.
ICTY, Prosecutor v. Tolimir [2012] IT-05-88/2-T, para 738.
- 162.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1985 (hereinafter UNCAT) Article 1.
- 163.
Ibid., Articles 5–7; for a recent application see ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium vs. Senegal) ICJ (Judgment of Jul. 20, 2012).
- 164.
See eg ICC Statute, Article 7(2)(e).
- 165.
See Luban and Shue 2012, pp. 840–841 (challenging the Bush Administration’s perception that conduct must result in long term psychological harm in order to count as mental torture).
- 166.
See supra Sect. 7.4.1.
- 167.
This is not to imply that mental harm is never attributable to a certain event. Indeed, while the origins of many specific phobias are difficult to identify, PTSD, for instance, generally emerges from “one special chain of events,” and thus can be attributed to a certain occurrence. Keane et al. 2009, p. 6.
- 168.
As opposed to state-responsibility, the problem of ex post assessment could be acute with regard to individual responsibility. For instance, the crime of disproportionate attack, as part of API’s supplement to the Grave Breaches regime, requires actual “death or serious injury to body or health” for the crime to materialize. See API, Article 85(3)(b). Note that such a requirement seems to be absent from the parallel provision in the Rome Statute. See ICC Statute, Article 8(2)(b)(iv)—be it as it may, it is highly unlikely that a person be indicted for such an act if harm was not in fact caused, for obvious reasons.
- 169.
Secondary norms are norms that are meant to ensure the operation of the primary norms regulating the behavior of the legal subject. Norms regulating the determination of violations, for instance, are such. See in general and in the context of international law specifically Hart 2012, pp. 79–91, 214.
- 170.
For a general discussion see Koh 1997.
- 171.
According to the Israeli Defense Forces, there were 1,166 fatalities in Gaza, among them 295 civilians. See IDF IDF (2009) Operation Cast Lead: Humanitarian Aspects. www.mfa.gov.il/MFA_Graphics/MFA%20Gallery/Documents/CastLeadHumanitarianReport.pdf., p.3 (Accessed 6 June 2013). Hamas authorities in Gaza reported 1,444 fatalities, while NGOs reported 1,387 fatalities. See Goldstone Report, para 30.
- 172.
Israel claimed that 68 civilians were killed in Gaza, while Palestinian sources claimed 105 fatalities. See respectively Intelligence and Terrorism Information Center (2012) Findings of Analysis of Names of Terrorists Killed in Operation “Pillar of Defense” and the Relations between them and Uninvolved Civilian Deaths. www.terrorism-info.org.il/he/article/20444. (Accessed 6 June 2013); PCHR (2012) The Total Numbers of Victims of the Israeli Offensive on the Gaza Strip. www.pchrgaza.org/portal/en/index.php?option=com_content&view=article&id=9052:1&catid=145:in-focus. Accessed 6 June 2013.
- 173.
ICC Statute, Article 8(2)(b)(iv).
- 174.
Ibid.
- 175.
See supra, text accompanying note 171.
- 176.
McCormack T and Mtharu P (2006), Expected Civilian Damage and the Proportionality Equation. www.apcml.org/documents/un_report_exp_civilian_damage_1106.pdf. (Accessed 2 June 2013).
- 177.
API, Article 57(2)(a)(ii).
- 178.
Ibid., Articles 57(2)(a)(iii), 57(2)(b).
- 179.
In international law, state responsibility does not necessarily require actual harm, unless the primary rule provides so. See International Law Commission 2001, p. 3. In this, the proportionality principle differs from the common law tort of negligence, which requires actual materialization of harm. This difference seems rooted in IHL’s nature as public, rather than private law.
- 180.
See eg Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia (2000), para 50; McCormack and Mtharu 2006, p. 4.
- 181.
Sandoz et al. 1987, p. 679 “[t]he differences of opinion [regarding the proportionality standard] were mainly related to the very heavy burden of responsibility imposed by this article on military commanders, particularly as the various provisions are relatively imprecise and are open to a fairly broad margin of judgment).
- 182.
API, Article 57(2)(a)(ii).
- 183.
And not according to the outcome in practice. See Dinstein ( 2010 ) pp. 132–133.
- 184.
See eg Schmitt 2005, p. 460.
- 185.
Blum 2011.
- 186.
See Mcneal 2013, p. 54, pp. 64–78 (detailing the CDM process employed by US forces).
- 187.
See ibid., at p. 66.
- 188.
See eg Perilla et al. 2002. Nonetheless, this difference between the types of harm should not be taken at face value. First, physical effects also vary in different environments. See US Chairman of the Joint Chiefs of Staff 2009, p. D-5. Second, some persons are more sensitive than others also with regard to physical harm. Be it as it may, it is helpful to mention the famous “thin skull” rule in torts which recognizes that differential sensitivity in itself does not preclude liability. Moreover, the Restatement (Third) of Torts acknowledges that the thin skull rule applies also to emotional harm of an unforeseeable magnitude. It suffices that the type of harm that occurs is unexceptional. Restatement (Third), Ch. 6. §31.
- 189.
On the contrary: some view foreseeability of mental harm as rather obvious, in the sense that it results in too-wide liability. Thing v. La Chusa, 771 P..2d 814, 826–827 (Cal. 1989). This seems to be the view of the Third Restatement of Torts. See Restatement (Third) Ch. 8§47, Reporters’ Notes Comment (i); see also The Law Commission 1997, paras 2.4–2.9. It should be added that resort to international authorities in this context is less helpful, since these are more concerned with remedies in relation to intentional harm such as torture and forced disappearances, and less with the issue of negligence. For a survey see Evans 2012, pp. 44–85.
- 190.
Comparable conclusions could also be drawn from the development of UK law in this context. See generally The Law Commission 1997.
- 191.
Restatement (Third) Ch. 1§3. A key difference is that the benefit in in bello proportionality is measured according to an attacker’s military advantage, while in torts the benefit considered is societal.
- 192.
Ibid., Ch. 2§4 Comments c–d.
- 193.
See eg Zatzick et al. 2002.
- 194.
Restatement (Third) Ch. 8 Scope Note.
- 195.
Ibid.
- 196.
- 197.
Restatement (Third) Ch. 8§47.
- 198.
ibid., comment e.
- 199.
Restatement (Third) Ch. 8§47.
- 200.
Eytan et al. 2011, p. 954.
- 201.
Yaswi and Haque 2008, pp. 479–480.
- 202.
Although some speculate that ongoing violence has immunized Israelis, to some extent, from PTSD, at least in the long-run. See Neria et al. 2010, pp. 329–330 (noting the possible implications of ongoing trauma exposure as a mitigating or aggravating factor in the development of PTSD).
- 203.
See Thabet et al. 2008, pp. 196–197.
- 204.
- 205.
Such algorithms, currently used to predict physical harm, “are based on empirical data gathered in field tests, probability, historical observations from weapons employed on the battlefield, and physics-based computerized models for collateral damage estimates.” See Mcneal 2013. p. 65. It is not implausible, therefore, that PTSD prediction models, based on complex variables—some sensitive even to wider political contexts—could be applied within these algorithms.
References
Addison CG et al (1870) Wrongs and their remedies: being a treatise on the law of torts, 3rd edn. Banks and Brothers, New York
Ambos K (2011) Judicial creativity at the Special Tribunal for Lebanon: is there a crime of terrorism under international law? Leiden J Int Law 24:655
American Law Institute (1965) Restatement second, torts. American Law Institute, Philadelphia
American Law Institute (2012) Restatement third, torts: liability for physical and emotional harm. American Law Institute, MN
American Psychiatric Association (2013) Diagnostic and statistical manual of mental disorders, 5th edn. (DSM-5). American Psychiatric Publishing, Arlington
Arnold R, Quénivet N (eds) (2008) International humanitarian law and human rights law: towards a new merger in international law. Brill, Leiden
Askin KD (2003) Prosecuting wartime rape and other gender-related crimes under international law: extraordinary advances, enduring obstacles. Berkeley J Int Law 2:288
Banks WC (2011) Toward an adaptive international humanitarian law: new norms for new battlefields. In: Banks WC (ed) New battlefields/old laws: critical debates on asymmetric warfare. Columbia University Press, New York, pp 1–22
Barak A (2005) Purposive interpretation in law. Princeton University Press, Princeton
Blum G (2011) On a differential law of war. Harv J Int Law 52:164
Blum G (2013) The fog of victory. EJIL 24:391
Brain C (2002) Advanced psychology: applications, issues and perspectives. Nelson Thornes, Bolton
Cahn N (2005) Beyond retribution and impunity: responding to war crimes of sexual violence. Stanf J Civil Rights Civil Lib 1:217
Charlson FJ et al (2012) Prediction the impact of the 2011 conflict in Libya on population mental health: PTSD and depression prevalence and mental health service requirements. PLoS ONE 7:1–11
Desmond JM (2006) Mental and physical examinations in cases involving brain injuries and psychological injuries. Mass Law Rev 90:2
Dinstein Y (2004) The conduct of hostilities under the international law of armed conflict, 1st edn. Cambridge University Press, Cambridge
Dinstein Y (2010) The conduct of hostilities under the law of international armed conflict, 2nd edn. Cambridge University Press, Cambridge
Dworkin RM (1986) Law’s empire. Harvard University Press, Cambridge
Evans C (2012) The right to reparation in international law for victims of armed conflict. Cambridge University Press, Cambridge
Eytan A et al (2011) Mental and physical health of kosovar albanians in their place of origin: a post-war 6-year follow-up study. Soc Psychiatry Psychiatr Epidemiol 46:953
Ferraro T, ICRC (2012) Expert meeting: occupation and other forms of administration of foreign territory. ICRC, Geneva
Fuller LL (1969) The morality of law. Yale University Press, New Haven
Geiss R (2012) The principle of proportionality: “force protection” as a military advantage. Isr Law Rev 45:71
Gelkopf M et al (2008) The mental health impact of terrorism in Israel: a repeat cross-sectional study of Arabs and Jews. Acta Psychiatr Scand 117:369
Gorove S (1951) The problem of “mental harm” in the Genocide Convention. Wash Univ Law Q 1951:174
Grey BJ (2011) Neuroscience and emotional harm in tort law: rethinking the American approach to free-standing emotional distress claims. Curr Leg Issues 13:203
Hart HLA (2012) The concept of law, 3rd edn. Oxford University Press, Oxford
Hakimi M (2012) A functional approach to targeting and detention. Mich Law Rev 110:1365
Hays-Parks W (1990) Air war and the law of war. Air Force Law Rev 32:1
Heller KJ (2011) The Nuremberg military tribunals and the origins of international criminal law. Oxford University Press, Oxford
Henckaerts JM and Doswald-Beck L, ICRC (2005) Customary international humanitarian law. Cambridge University Press, Cambridge
Independent International Fact-Finding Mission on the Conflict in Georgia (2009) Report
International Human Rights and Conflict Resolution Clinic, Stanford Law School and Global Justice Clinic, New York University School of Law (2012) Living Under Drones: Death, Injury and Trauma to Civilians From US Drone Practices in Pakistan
International Law Commission (2001) Draft Responsibility of States for Internationally Wrongful Acts, with Commentaries
Jessberger F (2009) The definition and the elements of the crime of genocide. In: Gaeta P (ed) The UN Genocide Convention: a commentary. Oxford University Press, Oxford, pp 87–111
Keane TM et al (2009) Post-traumatic stress disorder: definition, prevalence, and risk factors. In: Shiromany PJ et al (eds) Post-traumatic stress disorder: basic science and clinical practice. Humana Press, New York, pp 1–22
Koh HH (1997) Why do nations obey international law? Yale Law J 106:2599
Kolb R (2012) The main epochs of modern international law since 1864 and their related dominant legal constructions. In: Muzenović Larsen et al (eds) Searching for a “principle of humanity” in international humanitarian law. Cambridge University Press, Cambridge, pp 23–71
Lamp N (2011) Conceptions of war and paradigms of compliance: the “new war” challenge to international humanitarian law. J Confl Secur Law 1:225
Law Commission (1997) Liability for psychiatric illness
Lepsius O (2006) Human dignity and the downing of aircraft: the German federal constitutional court strikes down a prominent anti-terrorism provision in the new air-transport security act. Ger Law J 7:761
Luban D (2011) Risk taking and force protection. Georgetown Public Law Research Paper No. 11-72
Luban D, Shue H (2012) Mental torture: a critique of erasures in US law. Georget Law J 100:823
Lubell N (2012) Human rights obligations in military occupation. Int Rev Red Cross 94:317
Lumley MA et al (2011) Pain and emotion: a biopsychosocial review of recent research. J Clin Psychol 67:942
Lykes MB, Mersky M (2006) Reparations and mental health: psychological interventions towards healing, human agency and rethreading social realities. In: De Greiff (ed) The handbook of reparations. Oxford University Press, Oxford, pp 589–622
McCormack T and Mtharu P (2006) Expected civilian damage and the proportionality equation. www.apcml.org/documents/un_report_exp_civilian_damage_1106.pdf. Accessed 2 June 2013
Mcneal GS (2013) Kill-lists and accountability. Georget Law J (forthcoming), Available at SSRN: papers.ssrn.com/sol3/papers.cfm?abstract_id=1819583
Melzer N, ICRC (2009) Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law. ICRC, Geneva
Meron T (2000a) The Martens Clause, principles of humanity, and dictates of public conscience. Am J Int Law 94:78
Meron T (2000b) The humanization of humanitarian law. Am J Int Law 94:239
Mulheron R (2012) Rewriting the requirement for a “recognized pyschiatric injury” in negligence claims. Oxf J Leg Stud 32:77
Muzenović Larsen K (2012) A “principle of humanity” or a “principle of human-rightism”? In: Muzenović Larsen et al (eds) Searching for a “principle of humanity” in international humanitarian law. Cambridge University Press, Cambridge, pp 124–148
Neria et al (2010) A longitudinal study of posttraumatic stress disorder, depression, and generalized anxiety disorder in israeli civilians exposed to war trauma. J Trauma Stress 23:322
Ohlin JD (2013) The duty to capture. Minn Law Rev 97:1268
Perilla JL et al (2002) Ethnicity, culture and disaster response: identifying and explaining ethnic differences in PTSD six months after hurricane Andrew. J Soc Clin Psychol 21:20
Peterson AL et al (2008) Combat stress casualties in Iraq. Part 1: behavioral health consultation at an expeditionary medical group. Perspect Psychiatr Care 44:146
Pictet JS (ed) (1958) Geneva Convention IV: commentary. ICRC, Geneva
Rabin RL (2006) Respecting boundaries and the economic loss rule in tort. Ariz Law Rev 48:857
Richemond-Barak D (2011) Nonstate actors in armed conflicts: issues of distinction and reciprocity. In: Banks WC (ed) New battlefields/old laws: critical debates on asymmetric warfare. Columbia University Press, New York, pp 106–132
Sandoz Y et al. (eds) (1987) Commentary on the Additional Protocols of 8 June 1977. Kluwer, Dordrecht
Sassòli M et al. (2011) How does law protect in war, vol I. ICRC, Geneva
Schmid AP (2011) Introduction. In: Schmid AP (ed) The Routledge handbook of terrorism research. Routledge, Abingdon, pp 1–37
Schmitt MN (2004) “Direct participation in hostilities” and 21st century armed conflict. In: Fischer H et al (eds) Crisis management and humanitarian protection: Festschrift für Dieter Fleck. BWV, Berlin, pp 505–529
Schmitt MN (2005) Precision attack and international humanitarian law. Int Rev Red Cross 87:445
Schmitt MN (2007) Asymmetrical warfare and international humanitarian law. In: Heintschel von Heinegg W, Epping V (eds) International humanitarian law facing new challenges: symposium in honour of Knut Ipsen. Springer, Berlin, pp 11–48
Schmitt MN (2010) Military necessity and humanity in international humanitarian law: preserving the delicate balance. Va J Int Law 50:795
Schmitt MN (ed) (2013) Tallinn Manual on the International Law Applicable to Cyber Warfare. International group of experts at the invitation of the Nato Cooperative Cyber Defence Centre of Excellence. Cambridge University Press, Cambridge
Solis GD (2010) The law of armed conflict: international humanitarian law in war. Cambridge University Press, Cambridge
Solomon S (2011) Occupied or not: the question of Gaza’s legal status after the Israeli disengagement. Cardozo J Int Comp Law 19:59
Solomon S (2012) The recent European court of human rights judgment in the finogenov case: towards and esoteric humanization of warfare. Berkeley J Int Law PUBLICIST 11
Steel Z et al (2009) Association of torture and other potentially traumatic events with mental health outcomes among populations exposed to mass conflict and displacement. JAMA 302:537
Thabet AA et al (2008) Exposure to war trauma and PTSD among parents and children in the Gaza strip. Eur Child Adolesc Psychiatry 17:191
Tirosh Y (2012) The right to be fat. Yale J Health Policy Law Eth 12:264
UCDP/PRIO (2009) Armed conflict dataset. www.prio.no/Data/Armed-Conflict/UCDP-PRIO/Armed-Conflicts-Version-X-2009/. Accessed 2 June 2013
US Army and Marine Corps (2006) Counterinsurgency field manual
US Chairman of the Joint Chiefs of Staff (2009) Instruction: no-strike and the collateral damage estimation methodology. CJCSI 3160:01
Vasterling J, Brewin CR (eds) (2005) Neuropsychology of PTSD: biological, cognitive, and clinical perspectives. Guilford Press, New York
Walzer M (2004) Arguing about war. Yale University Press, New Haven
Watkin K (2004) Controlling the use of force: a role for human rights norms in contemporary armed conflict. AJIL 98:1
Wertheimer M (2012) A brief history of psychology. Taylor and Francis, New York
Yaswi A, Haque A (2008) Prevalence of PTSD symptoms and depression and level of coping among the victims of the Kashmir conflict. J Loss Trauma 13:471
Zatzick F et al (2002) Predicting posttraumatic distress in hospitalized trauma survivors with acute injuries. Am J Psychiatry 159:941
Zegveld L (2011) The accountability of armed opposition groups in international law. Cambridge University Press, Cambridge
Ziegler R, Otzari S (2012) Do soldiers’ lives matter? A view from proportionality. Isr Law Rev 45:53
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2014 T.M.C. Asser Press and the authors
About this chapter
Cite this chapter
Lieblich, E. (2014). Beyond Life and Limb: Exploring Incidental Mental Harm Under International Humanitarian Law. In: Jinks, D., Maogoto, J., Solomon, S. (eds) Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-008-4_7
Download citation
DOI: https://doi.org/10.1007/978-94-6265-008-4_7
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-007-7
Online ISBN: 978-94-6265-008-4
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)
