From the previous chapter it became clear that, there is little to no practical discussion of mental harm in relation to armed conflicts. This chapter is dedicated to discuss this gap between mental harm falling under article 8 of the Rome Statute, yet in practice it is not applied. Furthermore, as explained above an extensive jurisprudence in relation to other forms of crimes exists, both at national and international level.327
As regards national level, both domestic criminal law and tort law has an extensive jurisdiction revolving around mental harm, however not in the field of war crimes.328 Such distinction might have customary origins, as explained above practice indicates little to no consideration for mental harm. By extant judges lack the means and methods to address mental harm, in turn leading to further cases where mental harm is not discussed.329 Furthermore, it may be due to the high standards of evidence.330 Due to its subjectivity, foreseeability of mental harm may prove difficult. Which in turn may make proportionality assessment difficult. This chapter aims to discover these issues.
This Chapter ultimately aims to answer the following questions:
- Under what conditions shall mental harm trigger individual criminal responsibility under article 8 of the Rome Statute?
327 Solomon on Concretizing Mental Harm 328 ibid
329 Ibid p 134 330 ibid
4.2. The issue of nexus
As mentioned above nexus is a generally expected criteria under article 8 of the Rome Statute. On one hand the minute reference to mental harm under article 8 of the Rome Statute may be due to the high standards governing war crimes.331 The difference is significantly apparent when compared to tort law, that does not require a prove “beyond reasonable doubt.”332 As extended hostilities may prove it rather difficult to prove beyond reasonable doubt that mental harm was caused by a single attack.333 Despite domestic criminal law generally accepting mental harm, when mental harm is linked to a larger pattern of facts, national courts tend to not award damages due to the unreliability of evidence.334
4.3. Severity of mental harm necessary to qualify as a war crime
Linked to the aforementioned notion of “beyond reasonable doubt”, the threshold for the severity of mental harm as a war crime is higher than mental harm under regular circumstances. The effects do not equal the regular stress and fear of weapons or armed conflict, but abnormal psychological effects.335 For instance, disorientation and or confusion induce calm or precipitate seizures or psychosis.336 Thus this brings the question, provided that mental harm is foreseen, how the level of severity of mental harm assessed?
331 Ibid p 132
332 Jack Weinstein & Ian Dewsbury, Comment on the Meaning of Beyond Reasonable Doubt', 5 L.
PROBABILITY & RISK 167, 172 (2006).
333 Noam Lubell & Amichai Cohen, Strategic Proportionality: Limitations on the Use of Force in Modern Armed Conflicts, 96 INT'L L. STUD. 159, 174 (2020).
334 Verwaltungsgericht [VG] [Administrative Trial Courts] Feb. 9, 2012, Entscheidungen des
Bundesverwaltungsgerichts [BVERWGE] 26 K 5534/10; Bundesgerichtshof [BGHJ [Federal Court of Justice]
Oct. 6, 2016, Entscheidungen des Bundesgerichtshofes in Zivilsenats [BGHZ] III ZR 140/15; Civ. [Tribunal of First Instance] Bruxelles (11th ch.), Oct. 22, 2012, 283/11/12, para. 2.4; Ali Jaber v. United States, 861 F.3d 241, 249-50 (D.C. Cir. 2017); Salim bin Jaber et al. v. United States et. al., 155 F. Supp. 3d 70 (D.C. Cir.
2016).; Antonio Buschardini, Khaled El Hamini Will Not Stop His Fight Against NATO, BRUSSELS EXPRESS (Jan. 29, 2018); Cary Karacas, Fire Bombings and Forgotten Civilians: The Lawsuit Seeking Compensation for Victims of the Tokyo Air Raids, 9 ASIA-PACIFIC J.: JAPAN FOCUs 1, 1-12 (2011); Toky6 Chih6 Saibansho [Tokyo Dist. Ct.] Dec. 2009 (Japan); Kyodo, Damages Suit Over 1945 Air Raids on Osaka Dismissed, JAPAN TIMES (Dec. 9, 2011); German State Not Liable to Pay Compensation to Victims of 2009 Kunduz Airstrike, DEUTSCHE WELLE (Oct. 6, 2016) as cited in Solomon on Concretizing Mental Harm 335 Doswald Beck L (ed.) Blinding weapons. Geneva: The International Committee of the Red Cross 1993.;
The International Committee of the Red Cross. The'Medical Profession and the Effects of Weapons: the Symposium. Geneva: The International Committee of the Red Cross 1996.
336 Non Lethal Weapons: Emerging Requirements for Security Strategy. (Anon.) Washington DC: The Institute for Foreign Policy Analysis 1996.; Lewer N, Schofield S. Non-lethal weapons: a fatal attraction? London: Zed Books 1997.; Coupland RM. "Non-lethal" weapons: precipitating a new arms race. Br Med J 1997; 315:72.;
Dando M. A new form of waifare: the rise of non-lethal weapons. London: Brassey's 1996.
It is logically understood by any reasonable person that, armed conflicts and weapons in general cause some level of fear and stress.337 However, there shall be distinction made between regular stress and serious mental harm.338 As mentioned in the previous chapter, some national courts accepts recognized psychiatric illnesses, such as disorders from the DSM-V339 that have sufficiently serious consequences. Such as PTSD, depression, DID and so on.340 Accepting only recognized psychological disorders, could provide as a reliable tool to set a sufficiently high threshold war crimes.
4.4. Foreseeability
As explained in the previous Chapter, foreseeability of mental harm is a criteria for liability.
The question then arises, could the perpetrator be aware that mental harm will occur? Is it foreseeable? Certainly, harm is easy to predict as regards physical injuries and death. Mental harm is a more subjective.
It is demanded by law that, the military commander is aware of the possibility of harm.341 If circumstances combined with the means and methods, make a reasonable person to expect (mental) harm that action shall not be carried out.342 For example, a predictable abnormal psychological consequences as a result of a certain weapon.343
The aforementioned is true, provided that during its proportionality assessment the military commander does not come to the conclusion that the military advantage outweighs the harm.
The question then arises: can we expect from a military commander to foresee the psychological impact of an attack?344 It is indeed more challenging to provide a reliable and objective framework for mental harm caused by armed conflicts, that compared to physical harm. As mental harm assessments have a larger standard deviation of applicability.345 As well as, certain individuals are more likely to suffer mental harm, whereas physical harm is
337 The Serious Project - https://tile.loc.gov/storage-services/service/ll/llmlp/SIrUS-project/SIrUS-project.pdf 338 Solomon on Psychological impact of military operations
339 DSM-5 340 ibid
341 ICRC CIHL Volume I rule 101 342 Solomon on Quasi-judicial Bodies
343 The Serious Project - https://tile.loc.gov/storage-services/service/ll/llmlp/SIrUS-project/SIrUS-project.pdf 344 Haggerty, Robert J., and Patricia J. Mrazek, eds. "Reducing risks for mental disorders: Frontiers for preventive intervention research." (1994) [Haggerty]; ReliefWeb. Incidental yet Monumental: Incorporating Mental Health Impacts into IHL Proportionality Assessments. (7 April 2017)
https://reliefweb.int/report/world/incidental-yet-monumental-incorporating-mental-health-impacts-ihl-proportionality 345 Gray & Bjorklund
more or less the same for every person.346 Assessment of mental harm includes the consideration of personal characteristics, biological, cultural and physiological factors, cross-referenced with vulnerability and preventive factors, specific to each condition.347 Then this assessment shall be done for each possible for of mental harm.348 However, this is not to set the unrealistic expectation that a military commander is expected to consider every unknown individual one by one, but to consider the general population expected to be in the area of the attack.
Indeed, physical harm is more uniform among human beings.349 Which is can easily be predicted by pre testing of the measures and weapons involved.350 Note that, consideration of harm is mandatory during the development of weapons, and also during its application.351 For example bullets can be tested in advance to see the extent of damage they cause, where the results are expected to affect every human the same way. The way militaries invest in developing weapons and testing their physical impact. Similarly, armed forces could test the mental impact of means and methods. Additionally, experts could be consulted, leaders could be educated. With current medical advancements and knowledge of psychology, PTSD,352 anxiety disorder, depression and so on are relatively accurately foreseeable.353
According to the ICRC study, during its proportionality assessment and consideration for precautionary principle, a military commander does not have to be certain pertaining to the harm, including mental harm.354
Thus it seems that it can be applied to the general population. Although it is difficult, it is not impossible to foresee mental harm of armed conflict. So long as all elements are considered carefully; personal characteristics (age, gender, culture, etc) and circumstantial characteristics (means and methods applied).
346 Gray & Bjorklund; Hall, John E., and Michael E. Hall. Guyton and Hall textbook of medical physiology e-Book. Elsevier Health Sciences, 2020; Haggerty, Robert J., and Patricia J. Mrazek, eds. "Reducing risks for mental disorders: Frontiers for preventive intervention research." (1994) [Hall]
347 Haggerty
348 Gray & Bjorklund 349 Hall
350 ICRC on weapon testing. https://www.youtube.com/watch?v=6qJT03cpOx0
351 The Serious Project - https://tile.loc.gov/storage-services/service/ll/llmlp/SIrUS-project/SIrUS-project.pdf 352 Fares ; Solomon on Quasi-judicial Bodies
353 Sapolsky
354 Solomon on Quasi-judicial Bodies
4.5. Other challenges
On another note, the reliability of assessing the harm to victims. Considering the nature of the crime concerned, one may question whether it is feasible to accurately assess all the victims.
For instance, in the Bemba case over 5,000 victims were victim participants, which does not include all the victims.355 In case of physical harm it is rather easy to prove that harm has been done, however, in case of mental harm reliable diagnosis of large amounts of victims requires a large amounts of efforts and precaution. Especially considering the facileness of false mental harm witness evidence.356 Victims´ revenge is an issue that might arise, where the victims might try to falsify mental harm due to its seemingly easy manipulation, in order to take revenge on the perpetrator.357
4.6. Solution
As proposed by Solomon, a simple solution would be to invite mental health experts when such cases arise.358 As clarified in Chapter 2, today´s medical and psychological knowledge is advanced enough to make reliable assessment of mental health in relation to armed conflicts.
The rapid advancement in the field of medicine, psychology and technology development continuously provide an increasingly reliable foundation for psychological assessment and knowledge, including such in the context of an armed conflict.359 For instance, PTSD, DID and so on are easily provable by means of psychological assessments and MRI.360 Which can assess the severity of mental harm. Moreover, as explained above trauma-focused cognitive behavioural assessment is also very effective.361 Which may help with linking the mental harm to the attack.
Although it is not as simple as proving physical harm to the victims, and it may be more costly. But perhaps more importantly, difficulty and perplexity shall not deprive victims of
355 ICC. The Prosecutor v. Jean-Pierre Bemba Gombo (8 June 2018) ICC-01/05-01/08
356 Kim, Sung Hee, and Richard H. Smith. "Revenge and conflict escalation." Negot. J. 9 (1993): 37.; Cryer (n32); Guilfoyle, Douglas. International criminal law. Oxford University Press, 2016.
357 Schumann, Karina, and Michael Ross. "The benefits, costs, and paradox of revenge." Social and Personality Psychology Compass 4, no. 12 (2010): 1193-1205.
358 Solomon on Concretizing Mental Harm p 134
359 The Legal Framework For Psychological And Influence Operations Under International Law, The Law Applicable To Armed Conflict And International Criminal Law
360 Kunimatsu, Akira, Koichiro Yasaka, Hiroyuki Akai, Natsuko Kunimatsu, and Osamu Abe. "MRI findings in posttraumatic stress disorder." Journal of Magnetic Resonance Imaging 52, no. 2 (2020): 380-396.
361 Ennis, Naomi, Shai Shorer, Yael Shoval Zuckerman, Sara Freedman, Candice M. Monson, and Rachel ‐ Dekel. "Treating posttraumatic stress disorder across cultures: A systematic review of cultural adaptations of trauma focused cognitive behavioral therapies."‐ Journal of Clinical Psychology 76, no. 4 (2020): 587-611
their right to fair remedy as protected under numerous international human rights instruments, such as article 8 of the Universal Declaration on Human Rights.362 However, it is to bare in mind that, provided that mental health experts provide evidence, the courts may not align the legal meaning of mental health with the psychological expert report.363
In other words, mental harm shall trigger individual criminal responsibility under article 8 of the Rome Statute, so long as it is has a link it can be linked to the armed conflict, it was foreseeable and it is sever form of mental harm.
4.7. Conclusion
This Chapter aimed to provide a reasoned analysis of the previous chapters and come to an answer in relation to the main research question. It became clear that several factors shall be met for mental harm to trigger individual criminal responsibility. Firstly, there shall be a nexus between the mental harm and the specific attack. Which may be shown by a trauma-focused cognitive behavioural assessment by an expert. As well as in some cases such claims can be supported by MRI scans. Secondly, the mental harm shall meet a certain degree of severity. Following the national approaches and considering the seriousness of war crimes, accepting recognized psychological disorders could set the desires threshold. Finally, the mental harm caused should have been foreseeable at the time of the attack. Most forms of mental harms are predictable and their foreseeability can be applied to the general population by considering several circumstantial factors. Armed forces, similarly to weaponry or training, shall invest in developing ensuring tools to consider mental harm.