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.
Statute. To answer the main research question, the following sub-questions have to be answered. It assessed; To what extent could mental harm trigger individual criminal responsibility under article 8 of the Rome Statute?
Chapter 2 looked at the relationship between armed conflict and mental harm. It was found that armed conflict is capable of causing serious mental harm,364 including PTSD, depression, anxiety, insomnia, psychosomatic complaints, DID, and so on. Which may have severe mental and indirectly physical consequences. Such include hypertension, cardiovascular disease, decreased immune system, and so on. The aforementioned harm can be caused by various means prohibited under IHL. For instance sexual abuse, separation from parents, recruitment into military activity, water shortage, nutritional deficiencies, stress of caregivers, unnecessary suffering, community destruction, displacement, exposure to traumatic incidents and violence, loss of protective factors, stress caused by migration and reintegration, and so on. Armed conflict can cause mental harm that is capable of the daily functioning of persons and may last a lifetime. Several reliable tools may diagnose mental harm, including trauma-focused cognitive therapy, MRI and so on. It was concluded that these methods are capable or reliably posterior assessment, as well as it can accurately predict their emerge.
Chapter 3 chapter looked at the existing law. First it set out the basic principles in relation to individual criminal responsibility. Followingly it set out legislation regarding mental harm.
First, article 8 of the Rome Statute was analysed. It became apparent that, article 8 itself did not specifically referred to mental harm. However, EoC made reference to mental harm a number of times. These references were in align with the law assessed afterwards. As article 8 2(b) and (d) of the Rome State makes explicit reference to other laws, hence all sources of IHL were looked at. Upon examining Hague law, it became clear that mental harm could emerge, for example in relation to unnecessary suffering. However, as of today no customs, case law or any record shows consideration of mental harm as a form of unnecessary suffering. Moreover, Geneva law provided a more extensive protection elaboration. However, initially it focused on the same violations as EoC, case law, customs and so on.
Contemporaneously, it was established that a general understanding exists that mental harm may fall under the scope of war crimes, provided that mental harm is severe enough. More specifically, torture, inhuman and degrading treatment appears well established under IHL.
Additionally, mutilation, harmful medical practices, sexual violence and a few other forms of mental harms are referred to, but not extensively dealt with. Hence, it was concluded that
364 ibid (n 5)
mental harm may trigger individual criminal responsibility under article 8 of the Rome Statute. However, IHL provide little explanation on it. Therefore, the chapter turned to national and international sources of law to gather further information on mental harm under criminal law. It was concluded that, mental harm may fall under war crimes for the purpose of article 8 of the Rome Statute. Nevertheless, application of mental harm seems to have a very narrow scope in theory and even more narrow in practice, considering the extensiveness scope of physical harm However, international legal community is aiming to ensure peace, security and justice in the world. It shall apply the most up to date methods available to fulfill its aims. Considering the fact that mental harm is proven to be capable of being as severe as physical injury, and with current medical and technological advancements permits reliable ex post assessment and ex ante prediction of mental harm. The next chapter is dedicated to make a meaningful assessment of all the aforementioned findings and come to a conclusion on under what circumstances should mental harm be applicable under article 8 of the Rome Statute.
Chapter 4 was dedicated to make a meaningful assessment of Chapter 2 and Chapter 3, thereby answering the main research question. It became clear that several factors shall be met for mental harm to trigger individual criminal responsibility under article 8 of the Rome Statute. Firstly, a nexus between the mental harm and the specific attack is required. Which may be evidentiated by a trauma-focused cognitive behavioural assessment by an expert, or MRI scans may support the claim. Secondly, the mental harm be of a certain degree of severity. Considering the national approaches and the seriousness of war crimes, setting the threshold at recognized psychological disorders under DSM-5 could provide a sufficiently firm threshold. Finally, the mental harm should have been foreseeable at the time of the attack. As set out in Chapter 2 mental harms caused by armed conflicts are predictable and applicable to the general public, hence foreseeable. Armed forces, similarly to weaponry or training, shall invest in developing ensuring tools to consider mental harm.
As per the foregoing arguments, it can be concluded that; Mental harm could tigger individual criminal responsibility under article 8 of the Rome Statute, so long as; 1) it has a nexus with an armed attack, 2) is meets a certain degree of severity, and 3) it was foreseeable at the time of the attack.
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