Name: Alexandra Posta
THE TRIANGULAR RELATIONSHIP BETWEEN BETWEEN MENTAL HEATH, ARMED
CONFLICT AND CRIMINAL LIABILITY UNDER ARTICLE 8 OF THE ROME STATUTE: a study on
the extent to which mental harm could trigger individual criminal responsibility under article 8 of
the Rome Statute
01.07.2022.
CONTENTS
Table of abbreviations...3
Abstract...3
CHAPTER 1 - INTRODUCTION...3
1.1. INTRODUCTION TO THE TOPIC...3
1.2. RELEVANCE...6
1.2.1. The Legal Relevance...6
1.2.2. The Societal Relevance...7
1.2.3. Academic relevance...8
1.3. METHODOLOGY...8
1.4. OUTLINE OF THESIS...9
CHAPTER 2 – PROBLEM DESCRIPTION: MENTAL HARM AND ARMED CONFLICT. .11 2.1. Introduction...11
2.2. Mental harm as a result of armed conflict...11
2.3. Types of mental harm caused by armed conflicts, their consequences and severity...12
2.3.1. PTSD...13
2.3.2. Depression...14
2.3.3.Anxiety...15
2.3.4. (Psycho)somatic complaints...16
2.3.5. DID...16
2.3.6. Physical consequences of mental harm...17
2.4. Causes of mental harm...17
2.5. Conclusion...20
CHAPTER 3 – LEGAL ASSESSMENT: MENTAL HARM AND THE LAW...21
3.1. Introduction...21
3.2. Liability...21
3.2.1. Jurisdiction...22
3.2.2. Individual criminal responsibility...22
3.3. Mental harm under the law...23
3.3.1. Rome Statute...23
3.3.2. IHL on mental health...27
3.3.3. Other sources of law...35
3.4. Conclusion...36
CHAPTER 4 – CHALLENGES TO MENTAL HEALTH...37
4.1. Introduction...37
4.2. The issue of nexus...38
4.3. Severity of mental harm necessary to qualify as a war crime...38
4.4. Foreseeability...39
4.5. Other challenges...41
4.6. Solution...41
4.7. Conclusion...42
CHAPTER 5 – CONCLUSION AND RECCOMENDATION...43
BIBLIOGAPHY...46
Legal sources...46
Primary legislation...46
Case law...47
Other sources...49
Non-legal sources...50
Academic sources...50
Other sources...58
Table of abbreviations
IHL International Humanitarian Law
CIHL Customary International Humanitarian Law ICRC International Committee Of The Red Cross
Rome Statute Rome Statute Of The International Criminal Court EoC International Criminal Court´s Elements Of Crimes ICC International Criminal Court
ICJ International Court Of Justice IAC International Armed Conflict NIAC Non-International Armed Conflict
UN United Nations
GC Geneva Convention
AP Additional Protocol
Abstract
Article 8 of the Rome Statute regulates war crimes, referring to any violations of the IHL.IHL traditionally focuses on mental harm. However, armed conflicts can also cause severe mental harm. The development of science allows reliable assessment of mental harm caused by armed conflict. Hence this thesis looked at the triangular relation between mental heath, armed conflict and criminal liability under article 8 of the Rome Statute. It aims to answers the question; To what extent could mental harm trigger individual criminal responsibility under article 8 of the Rome Statute?
The research found that armed conflict is capable of causing serious mental harm, including PTSD, depression, anxiety, insomnia, psychosomatic complaints, DID, and so on. Which in turn causes hypertension, cardiovascular disease, decreased immune system, and so on. The aforementioned harm can be caused by various prohibited acts under IHL. For example, torture, 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. It may disable a person´s daily functioning and may last a lifetime. Reliable diagnose include 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.
Followingly it was found that article 8 itself did not specifically referred to mental harm.
However, EoC made reference to mental harm. Other sources provided a more extensive protection. However, there were commonalities. First, mental harm may fall under the scope of war crimes, provided that mental harm is severe enough. Moreover, torture, inhuman and degrading treatment resulting in mental harm appears to be prohibited. 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 mental harm may trigger individual criminal responsibility under article 8 of the Rome Statute. However, IHL provide little explanation on it. Therefore, the research turned to national and international sources of law. It appeared that; 1) there is a nexus, 2) mental harm is severe enough and 3) the harm was foreseeable then it shall be prohibited under article 8 of the Rome Statute. To successfully achieve this, both courts and armed forces shall cooperate with mental health experts.
CHAPTER 1 - INTRODUCTION 1.1. INTRODUCTION TO THE TOPIC
Article 8 of the Rome Statute regulates war crimes.1 For the purpose of article 8, war crimes refer to any violations of the International Humanitarian law (IHL), including Hague law,2 Geneva law,3 other laws and customs4 applicable either in cases of international armed conflicts (IAC) or non-international armed conflicts (NIAC).5 Despite the initial theoretical aim of the 1949 Geneva Conventions to protect mental harm,6 practice remained in accordance with the traditional IHL focus on physical harm.7 However, armed conflicts can
1 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998 [Rome Statute] art 8
2 Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 29 July 1899 [HC 1899]; Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907 [HC 1907]
3 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GCI) (12 August 1949); Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GCII) (12 August 1949); Convention relative to the Treatment of Prisoners of War (GCIII) (12 August 1949); Convention relative to the Protection of Civilian Persons in Time of War (GCIV) (12 August 1949); Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (API) (8 June 1977); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (APII), 8 June 1977;
4 ICRC CIHL Volume I[ICRC CIHL Volume I]; International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, 2005, Volume II: Practice [ICRC CIHL Volume II]
5 Rome Statute art 8
6 International Committee Of The Red Cross, Commentary On The Geneva Conventions Of 12 August 1949, At 201 (Jean S. Pictet Ed., 1958).
7 Solomon, Solon. "Concretizing Mental Harm: Warfare's Psychological Impact on Civilians and the Return to Domestic Law for Establishing a Standards-Setting Paradigm." Transnat'l L. & Contemp. Probs. 31 (2021): 121 [Solomon on Concretizing Mental Harm]; Kress, Claus, and Robert Lawless. 2021. Necessity and proportionality in international peace and security law. [Kress]; Lieber Code; Caroline Ehlert, ´Prosecuting the Destruction of Cultural Property in International Criminal Law´ (2014) 5(19) Brill [Ehlert ]; Sigrid Mehring, First Do No Harm: Medical Ethics in International Humanitarian Law (Brill 2015) 80 [Mehring]; Mary Ellen O’
Connell, Historical Development and Legal Basis in Fleck Dieter (ed), The Handbook of International Humanitarian Law (3rd edn 2013, Oxford University Press) 21 [O´Connell]; Solomon, S. (2020) 'Quasi-judicial Bodies and the Establishment of Standards and Principles for Assessing Mental Harm Sustained by Civilians Exposed to Hostilities'. Journal of International Dispute Settlement, 12 (1). pp. 104 - 124. [Solomon on Quasi- judicial Bodies]
also cause mental harm,8 often with similar or equivalent effect as physical harm.9 The development of science in the field of medicine and psychology lead to the possibility to assess mental harm caused by armed conflict,10 despite its subjective nature.11
As armed conflict can cause serious mental harm and today’s scientific knowledge allows for its reliable assessment, it shall be questioned; To what extent could mental harm trigger individual criminal responsibility under article 8 of the Rome Statute?
In other words, this thesis aims to provide a clearer legal understanding of the triangular relation between mental heath, armed conflict and criminal liability under article 8 of the Rome Statute. To answer the main research question, the following sub-questions have to be answered.
8 Solomon, S. (2020) 'The psychological impact of military operations on civilians and the UN Human Rights Committee Japalali decision: Exploring mental anguish under a vida digna, right to life prism'. Journal of Conflict and Security Law, 26 (2). pp. 401 - 419. ISSN: 1467-7954 [Solomon on Psychological impact of military operations]; Kress; Andrew Dubinsky, ´An Examination of International Sentencing Guidelines and a Proposal for Amendments to the International Criminal Court’s Sentencing Structure´ (2007) 33(609) New England journal on criminal and civil confinement [Dubinsky ]; Solomon on Quasi-judicial Bodies; Solon Solomon, Bringing Psychological Harm to the Forefront: Incidental Civilian Fear as Trauma in the case of Recurrent Attacks (25 April 2018) EJIL Talk; ILA Study Group, The Conduct of Hostilities and International Humanitarian Law: Challenges of 21st Century Warfare, 25 June 2017, 28– 29 [ILA]; Eliav Lieblich, ‘Beyond Life and Limb: Exploring Incidental Mental Harm in International Humanitarian Law’ in Derek Jinks, Jackson Maogoto and Solon Solomon (eds), Applying International Humanitarian Law in Judicial And Quasi-Judicial Bodies (TMC Asser Press 2014) [Lieblich]; Bothe, Michael, Carl Bruch, Jordan Diamond, and David Jensen.
"International law protecting the environment during armed conflict: gaps and opportunities." International Review of the Red Cross 92, no. 879 (2010): 569-592 [Bothe]; PCJ; Krause, Keith. "From armed conflict to political violence: mapping & explaining conflict trends." Daedalus 145, no. 4 (2016): 113-126.; Garry, Sylvia, and Francesco Checchi. "Armed conflict and public health: into the 21st century." Journal of Public Health 42, no. 3 (2020): e287-e298 [Garry]; Bogic M, Njoku A, Priebe S. Long-term mental health of war-refugees: a systematic literature review. BMC Int Health Hum Rights 2015;15:29 [Bogic]; Gordon S, Baker A, Duten A, Garner P. Study Exploring the Evidence Relating Health and Conflict Interventions and Outcomes. London: UK Cross Government Group on Health and Conflict, 2010 [Gordon]; Mpembi MN, Lukeba T, Mayemba D et al.
Stress syndrome in patients receiving outpatient treatment at the General Hospital, in Bangui, in a context of armed conflict. The Pan African Medical Journal 2018;29:26 [Mpembi]; World Health Organization. Collective violence. In: Krug EG, Dahlberg LL, Mercy JA, Zwi AB, Lozano R, eds. World Report on Violence and Health.
Geneva, Switzerland: World Health Organization; 2002:213–239 [WHO]; Attanayake V, McKay R, Joffres M, Singh S, Burkle F Jr, Mills E. Prevalence of mental disorders among children exposed to war: a systematic review of 7,920 children. Med Confl Surviv. 2009;25(1):4–19 [Attanayake]; Shenoda, Sherry, Ayesha Kadir, Shelly Pitterman, Jeffrey Goldhagen, Parminder S. Suchdev, Kevin J. Chan, Cynthia R. Howard et al. "The effects of armed conflict on children." Pediatrics 142, no. 6 (2018) [Shenoda]; Brownmiller, S. (1975). Against our will: Men, women and rape. New York: Simon and Schuster [Brownmiller]; McKay, Susan. "The effects of armed conflict on girls and women." Peace and Conflict 4, no. 4 (1998): 381-392 [McKay]; Mann, J., Drucker, E., Tamntola, D., & McCabe, M. (1994). Bosnia: The war against public health. Medicine and Global Survival, I, 130-146 [Mann]; Gardam, Judith, and Hilary Charlesworth. "Protection of women in armed conflict." Hum.
Rts. Q. 22 (2000): 148 [Gardam]; Özdemir, Barbaros, Cemil Celik, and Taner Oznur. "Assessment of dissociation among combat-exposed soldiers with and without posttraumatic stress disorder." European journal of psychotraumatology 6, no. 1 (2015): 26657 [Özdemir]
9 Gray and Bjorklund [Gray & Bjorklund]
10 Solomon on Quasi-judicial Bodies 11 Gray & Bjorklund
- What evidence suggests that armed conflicts cause mental harm?
- What kinds of mental harm can be caused by armed conflict and how severe the consequences are?
- Considering their subjective nature, can such mental harms be a reliably assesses and predicted for the purpose of armed conflicts?
- What prohibitions of IHL can be identified that may result in mental harm?
- When can individual criminal responsibility be triggered in general?
- What does article 8 of the Rome Statute says about mental harm as a war crime?
- To what extent is mental harm regulated under IHL?
- How is mental harm regulated under other sources of law, including international law, national law?
- May mental harm trigger individual criminal responsibility under article 8 of the Rome Statute?
- Under what conditions shall mental harm trigger individual criminal responsibility under article 8 of the Rome Statute?
1.2. RELEVANCE 1.2.1. The Legal Relevance
Despite the fact that; decades of reliable medical and psychological evidence of serious mental harm caused by armed conflict;12 national law punishes severe mental harm;13 mental harm falls within the scope of genocide,14 there is little to no discussion among the legal community in relation to the triangular relationship between mental harm, armed conflict and individual criminal responsibility.15 Up to date, international courts and quasi-judicial institutions do not address mental health in relation to war crime to a sufficient extent.16
12 ibid (n 5)
13 Solomon on Concretizing Mental Harm.
14 UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, United Nations, Treaty Series, vol. 78, p. 277 art 2 (b)
15 Solomon on Concretizing Mental Harm.
16 Lieblich ; Solomon on Quasi-judicial Bodies
Although, ICJ17 and ICC18 have to some extent engaged in discussion of mental health, however in general the consideration of mental health in light of armed conflict is rather incomplete.19 It is lacking specificity 20 and lacks in-depth analysis.21 Furthermore, when looking at the Geneva Conventions, its commentaries, the ICRC’s document on customary international law, and national sources, nearly no reference to mental harm exists, let alone to a sufficient extent.22 However, law by nature requires clear and precise boundaries of its scope.23 Therefore, for the purpose of effectiveness and legal certainty, it is necessary to clarify these aspects.24 Therefore, this thesis aims to shed light on the legal aspects of this triangular relationship.
1.2.2. The Societal Relevance
The psychological problems are increasingly recognized by society as well.25 As scientists have developed more in-depth knowledge about the brain, psychology and psychological consequences. Moreover, the seriousness of psychological problems became increasingly accepted both scientifically and societally.26 It has become common knowledge that psychological problems can cause equivalent suffering to physiological harm,27 and that it is capable of directly or indirectly resulting in physical consequences and/or death.28 War and armed conflict brings upon civilians a very high level of stress and severe psychological consequences.29 Assessing the issue of mental health during armed conflict and attached
17 Republic of Guinea v Democratic Republic of the Congo, Judgment, ICJ Rep 2012, paras 18, 21
18 Solon Solomon, ‘International Criminal Courts and the Introduction of the Daubert Standard as a Mode of Assessing the Psychological Impact of Warfare on Civilians: A Comparative Perspective’, King’s College London Doctoral Thesis (2019), ch 2; Solomon on Quasi-judicial Bodies
19 Solomon on Quasi-judicial Bodies
20 Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Human Rights Council, A/HRC/39/65, 9 August 2018; Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Human Rights Council, A/HRC/39/65, 1 February 2018; Solomon on Quasi- judicial Bodies
21 A/HRC/39/65; A/HRC/39/65; Solomon on Quasi-judicial Bodies
22 GCI, GCII, GCIII, GCIV, API, APII, ICRC CIHL Volume I, ICRC CIHL Volume 2
23 John Braithwaite. ´Rules and principles: A theory of legal certainty.´ (2002) 27(47) Australasian Journal of Legal Philosophy
24 ibid
25 Gray & Bjorklund 26 ibid
27 ibid
28 Sapolsky, Robert M. Why zebras don't get ulcers: The acclaimed guide to stress, stress-related diseases, and coping. Holt paperbacks, 2004 [Sapolsky]
29 Weisleder, Pedro, and Caitlin Rublee. "The neuropsychological consequences of armed conflicts and torture." Current neurology and neuroscience reports 18, no. 3 (2018): 1-6.; Shultz, James M., Dana Rose Garfin, Zelde Espinel, Ricardo Araya, Maria A. Oquendo, Milton L. Wainberg, Roberto Chaskel et al.
"Internally displaced “victims of armed conflict” in Colombia: the trajectory and trauma signature of forced migration." Current psychiatry reports 16, no. 10 (2014): 1-16.
criminal liability may benefit society. It may allow for a wider scope of justice by also protecting those that suffer from mental health. Additionally, it may prevent future violations through deterrence. This is particularly important in light of the shift in trends of armed conflicts in recent decades, that indicate a move away from IAC towards NIAC.30 Especially, considering that non-state actors often disregard IHL.31
1.2.3. Academic relevance
The effects of mental harm as an equivalent of physical harm has been researched and proven by medical and psychological experts for several decades.32 Moreover, mental consequences of war and armed conflict from a medical and psychological academic point of view have been extensively dealt with.33 War crimes in relation to physical harm has been extensively discussed by academic and legal communities.34 However, there is little to no research between the relationship of mental health and war crime. As of today, there is little to no research and/or discussion on the triangular relationship between, mental health, armed conflict and individual criminal responsibility. Up to date, no academic article specifically discussing mental harm as a triggering mechanism of individual criminal responsibility in the context of article 8 of the Rome Statute. The sources that discuss mental health and war crime exist in pieces; partly in academic sources, partly in case law, partly on commentaries or in primary law. However, the pieces have to be put together. This thesis aims to identify said pieces and attempts to put them together in order to fil this gap in academia.
1.3. METHODOLOGY
The methodology applied to answer is a traditional legal research method based on desk research. It will involve descriptive and evaluative methods.
In order to answer the research questions a number of primary and secondary sources have been thoroughly analysed. In regards to primary sources, the Rome Statute was the starting
30 Dupuy, Kendra, and Siri Aas Rustad. "Trends in armed conflict, 1946–2017." Conflict Trends 5 (2018):
2018.
31 Ryngaert, Cedric. "Non-state actors in international humanitarian law." In Participants in the International Legal System, pp. 284-294. Routledge, 2011.; Al-Gharrawi, Fadhil Abudulzahra. "ISIS Violations of
International Law “Iraq as a model." journal of legal sciences 35, no. 2 (2020).
32 Gray & Bjorklund
33 Weisleder; Shultz; Solomon on Psychological impact of military operations; Kress; Dubinsky; Solomon on Quasi-judicial Bodies ; Solomon on Psychological Harm to the Forefront ; ILA ; Lieblich
34Cryer, Robert, Darryl Robinson, and Sergey Vasiliev, An introduction to international criminal law and procedure (Cambridge University Press, 2019) [Cryer]; Guilfoyle, Douglas. International criminal law. Oxford University Press, 2016. [Guilfoyle]
point, mainly article 25 and article 8 (2) (b) (i),35 and the Elements of Crimes of the ICC.36 As in accordance with article 21 of the Rome Statute the court shall hieratically consider the existing laws.37 It shall primarily apply the Rome Statute and the Elements of crimes and secondarily it shall consider other sources of international law.38 This latter is particularly important for the meaning of article 8, as that explicitly refers to IHL. Furthermore, in order to assess whether mental harm is a form of war crime and analysis of the IHL Principles, Hague law, Geneva Conventions,39 Additional Protocol I,40 their commentaries and the ICRC rules on Customary International Humanitarian law will be conducted.41 Moreover, case law of the ICC was considered, as well as of other international tribunals such as the ICTY and the ICJ. Finally, in order to fill the gaps or gain in depth understanding academic sources will be looked at.
During the writing phase three stages can be distinguished. Firstly, a descriptive method is going to be applied in Chapter 2 and Chapter 3. Chapter 2 provides the necessary psychological background. Whereas Chapter 3 sets out the applicable law. In this section the meaning and scope of war crime is defined under; article 8 of the Rome Statute,42 the elements of Crimes of the ICC, 43 the Geneva law44 Hague law, and CIHL, case law from international criminal courts. Secondly, an evaluative methodology is applied to better understand the challenges of mental harm under article 8 of the Rome Statute. Whereas rather than simply describing the law, the focus is shifted to the steps and considerations needed to establish mental harm as a war crime. Finally, the Chapter 4 of the thesis takes a step further to assess the circumstances under which mental health shall trigger application of article 8 of the Rome Statute. Finally, future recommendations are provided.
35 Rome Statute
36 International Criminal Court (ICC), Elements of Crimes, 2011, ISBN No. 92-9227-232-2 [EoC]
37 Rome Statute art 21
38 Rome Statute art 21; Bitti, Gilbert. "Article 21 of the Statute of the International Criminal Court and the Treatment of Sources of Law in the Jurisprudence of the ICC." In The Emerging Practice of the International Criminal Court, pp. 281-304. Brill Nijhoff, 2009.
39 GCIV 40 API
41 ICRC CIHL Volume I 42 Rome Statute
43 EoC
44 API; ICRC CIHL Volume I
1.4. OUTLINE OF THESIS
In order to answer the research question, the next chapter – Chapter 2 – discusses the relationship between mental harm and armed conflict. It first looks at evidence that support the claim that armed conflict may cause mental harm. Then, it turns to the forms of mental harm that may be caused by armed conflicts. Simultaneously, it analyses at the consequences and severity of these. Followingly, it considers the subjective nature of mental harm by elaborating on the reliability of its assessment and foreseeability. Finally, it discusses possible laws under IHL, violation of which may result in mental harm.
Chapter 3 concerns the laws. First a general introduction is provided in relation to individual criminal responsibility under the Rome Statute. Followingly, article 8 of the Rome Statute is discussed in general, then more specifically regarding mental harm. Then IHL is assessed in relation to mental harm. Subsequently other sources of law are looked at, including international law and national law.
Chapter 4 – will serve to provide a reasoned answer to the research question. As well as to elaborate on the relevant considerations when assessing individual criminal responsibility under article 8 of the Rome Statute triggered by mental harm.
Finally the last chapter – Chapter 5 – will be a conclusive chapter. It will summarize all the relevant finding of the thesis and a direct answer to the main research question. Finally, it sets out some recommendations in relation to future research.
CHAPTER 2 – PROBLEM DESCRIPTION: MENTAL HARM AND ARMED CONFLICT
2.1. Introduction
As set out above, mental harm may be caused by armed conflicts.45 Several decades of scientific research in the area of medicine and psychology supports this claim regarding several forms of mental harm.46 Hence, this chapter aims to look at the evidence that makes this claim possible. Followed by the kinds of mental harm that can be caused by armed conflict. Furthermore, it sets out the consequences and severity thereof. Moreover, and very importantly for the purpose of IHL and individual criminal responsibility, it elaborates on the subjective nature of mental harm, more precisely its foreseeability and reliable posterior assessment. Finally, it looks at possible prohibitions of IHL, that can in some way result in mental harm.
This chapter aims to answer the following questions:
- What evidence suggests that armed conflicts cause mental harm?
- What kinds of mental harm can be caused by armed conflict and how severe the consequences are?
- Considering their subjective nature, can such mental harms be a reliably assesses and predicted for the purpose of armed conflicts?
- What prohibitions of IHL can be identified that may result in mental harm?
2.2. Mental harm as a result of armed conflict
When thinking about the effects of war, physical injuries are the first thing that come to mind.
However, as clarified earlier consequences of war and armed conflicts also generate mental harm.47 Thus, the question arises; What evidence suggests that armed conflicts cause mental harm?
45 ibid (n 5) 46 ibid 47 ibid
Numerous studies indicate that armed conflicts can cause mental harm.48 Findings regarded especially vulnerable groups including woman, elderly and children.49 Countless studies focused on the direct and indirect mental harm to children during armed conflicts.50 Whereas several forms of commonly occurring mental harms have been identified, including but not excluded to depression, anxiety, and behavioural and psychosomatic complaints .51 Moreover, girls and woman face increasing risk52 of suffering serious mental harm, especially as a consequence of gender based violence, including sexual abuse.53
2.3. Types of mental harm caused by armed conflicts, their consequences and severity
Several forms of mental harm have been commonly associated with armed conflicts, including but not limited to post-traumatic stress disorder (PTSD),54 depression, 55anxiety, 56 insomnia,57 psychosomatic complaints,58 dissociative identity disorder (DID),59 and so on.
Effects of which may be equally dangerous to physiological effects.60 Moreover, psychological factors are capable of producing physiological consequences.61 Each, provided that it is severe enough, is capable of disabling persons from living their daily lives and may
48 ibid 49 ibid
50 Shenoda.; Garry.; Attanayake 51 Attanayake; WHO
52 Statement of Renee Guisan, Member of the Int'l Comm. of the Red Cross, to the Fourth World Conference on Women, Beijing, China, 4 Sept. 1995; Fourth World Conference on Women: Action for Equality,
Development, and Peace, Beijing Declaration and Platform for Action, U.N. GAOR, U.N. Doc. A/CONF.
177/20 (1995), reprinted in REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN (1995) (recommended to the UN General Assembly by the Committee on the Status of Women on 7 Oct. 1995) [hereinafter Beijing Platform for Action]. See also Report to the Secretary-General on Humanitarian Needs in Kuwait and Iraq in the Immediate Post-Crisis Environment by a Mission to the Area Led by Mr. Martti Ahtisaari, Under-Secretary-General for Administration and Management, Dated 20 March 1991, U.N. SCOR, U.N. Doc. S/22366 (1991); AMNESTY INTERNATIONAL, REPORT ON THE GULF WAR (1991);
HUMAN RIGHTS WATCH, NEEDLESS DEATHS IN THE GULF WAR (1991), HARVARD STUDY TEAM REPORT: PUBLIC HEALTH IN IRAQ AFTER THE GULF WAR (1991); HARVARD STUDY TEAM REPORT: HEALTH AND WELFARE IN IRAQ AFTER THE GULF CRISIS (1991) as cited in Gardam.
53 Mann. Brownmiller.; McKay; Jansen, Golie G. "Gender and war: The effects of armed conflict on women's health and mental health." Affilia 21, no. 2 (2006): 134-145 [Jansen]; Gardam.
54 Jansen; Mpembi.; Jawad Fares et al, ‘Post-Traumatic Stress Disorder in Adult Victims of Cluster Munitions in Lebanon: A 10-Year Longitudinal Study’ (2017) British Medical Journal 1, 7; Solomon on Quasi-judicial Bodies [Fares]
55 Jansen; Sapolsky.; Garry.; Attanayake; WHO.
56 Jansen; Garry.; Attanayake; WHO.; Sapolsky 57 Mpembi.
58 Attanayake; WHO.
59 Özdemir
60 Gray and Bjorklund.
61 Sapolsky
last a lifetime.62 It is necessary to note that, the primary diagnostic tool in psychology is DSM-5. However, MRI and ECG studies have developed alternative diagnostic tools.
It is commonly known that mental experiences and psychology is subjective.63 Consequently, foreseeability and application to the general population is challenging.64 Which resulted in international humanitarian law traditionally placing an emphasis on physical harm done to civilians.65 However, with current psychological and physiological knowledge, mental effects of armed conflict can be accurately measured.66
The following sub-sections are dedicated to further elaborate on these aforementioned mental consequences of armed conflict by; defining them, elaborating on the consequences and severity of each disorder, the possible diagnosis of them and its foreseeability and predictability of each disorder.
2.3.1. PTSD
PTSD refers to a mental health conditions that is triggered by a witnessed or directly experienced, repeated or extreme event of actual or perceived threat of death, serious injury, or sexual violence .67 It logically follows that more exposure to triggering events, the more sever PTSD is proven to be,68 that may last from 1 year till a lifetime.69 PTSD may result in recurrent, involuntary, and intrusive distressing memories, dreams70 or dissociative actions caused by internal or external cues hat symbolize or resemble an aspect of the traumatic
62 DSM-5
63 Gray & Bjorklund
64 Human Rights Watch: Up in Flames: Humanitarian Law Violations and Civilian Victims in the Conflict over South Ossetia, January 2009 at 190–96 contained in Independent International Fact-Finding Mission on the Conflict in Georgia, Volume I, September 2009; Emanuela-Chiara Gillard, ‘Joint Symposium: Chatham House Report on Proportionality in the Conduct of Hostilities-Some Key Elements’ (2019) 50(3) EJIL; Solomon on Quasi-judicial Bodies
65 Kress ; Lieber Code; Ehlert; Mehring; O´Connell; Solomon on Quasi-judicial Bodies 66 Solomon on Quasi-judicial Bodies
67 DSM-5. [DSM-5]
68 Minnen, Agnes van, and Edna B. Foa. "The effect of imaginal exposure length on outcome of treatment for PTSD." Journal of Traumatic Stress: Official Publication of The International Society for Traumatic Stress Studies 19, no. 4 (2006): 427-438.
69 American Psychiatric Association. 2013. Diagnostic and statistical manual of mental disorders: DSM-5.
Arlington, VA: American Psychiatric Association [DSM-5]
70 This may result in insomnia.
event.71 Moreover, it has a negative impact on cognition, mood72 and arousal.73 Avoidance of these consequences have proven to be impossible.74
PTSD is a well researched psychological disorder, therefore, diagnosis and application to the general population is possible. Several diagnostic methods exist, including meeting the criteria listed under DSM-575 and Magnetic resonance imaging (MRI)76.77 Although pre- traumatic personal risk factors play a role in predicting PTSD,78 nonetheless posterior tests proven to be highly accurate both by human and artificial intelligence.79
2.3.2. Depression
Depression is the everyday term for the several forms of Depressive disorders. It may last from 2 week to a lifetime.80 In general it refers to a set of symptoms including depressed mood, insomnia, hypersomnia, diminished interest, lower pleasure, fatigue, psychomotor agitation or retardation, lack of concentration, slow cognitive ability, reoccurring thoughts of death, lack of appetite etc.81
Depression can be diagnosed in numerous ways and its prediction is applicable to the general population. Depression generally is diagnosed by fulfilling the criteria under DSM-5.82 However, depression may also be examined by other means, including back depression inventory83 and MRI. 84 Recent MRI studies show significant differences in the blood-brain
71 DSM-5
72 This may result in depression 73 DSM-5
74 ibid 75 DSM-5.
76 For further specification on how PTSD is diagnosed via MRI see <
https://media.springernature.com/m685/springer-static/image/art%3A10.1038%2Fs41583-018-0039- 7/MediaObjects/41583_2018_39_Fig1_HTML.png>
77 Fenster, Robert J., Lauren AM Lebois, Kerry J. Ressler, and Junghyup Suh. "Brain circuit dysfunction in post-traumatic stress disorder: from mouse to man." Nature Reviews Neuroscience 19, no. 9 (2018): 535-551 78 Kessler, Ronald C., Sherri Rose, Karestan C. Koenen, Elie G. Karam, Paul E. Stang, Dan J. Stein, Steven G.
Heeringa et al. "How well can post traumatic stress disorder be predicted from pre trauma risk factors? An ‐ ‐ exploratory study in the WHO World Mental Health Surveys." World Psychiatry 13, no. 3 (2014): 265-274.
79 Worthington, Michelle A., Amar Mandavia, and Randall Richardson-Vejlgaard. "Prospective prediction of PTSD diagnosis in a nationally representative sample using machine learning." BMC psychiatry 20, no. 1 (2020): 1-10.
80 DSM-5.
81 ibid 82 DSM-5.
83 Jackson-Koku, Gordon. "Beck depression inventory." Occupational Medicine 66, no. 2 (2016): 174-175.
84 Wengler, Kenneth, Brandon K. Ashinoff, Elena Pueraro, Clifford M. Cassidy, Guillermo Horga, and Bret R.
Rutherford. "Association between neuromelanin-sensitive MRI signal and psychomotor slowing in late-life depression." Neuropsychopharmacology 46, no. 7 (2021): 1233-1239.
barrier area.85 Similarly to PTSD personal risk factor modify individual risk of depression.86 However, it is proven that armed conflict increases a persons likelihood to be depressed by five times.87 Moreover, it was shown that threat of socioeconomic harm during armed conflict increases the likelihood of depression.88
2.3.3.Anxiety
Anxiety refers to the cluster of anxiety disorders that consists of several specific types of mental disorders, including panic disorder and separation anxiety disorder. In sever cases it may become a remerging issue and may last for a lifetime.89 Anxiety mainly surfaces by either causing fear or anxiety of a negatively perceived subject.90 As well as, especially panic disorder, may result in physiological symptoms, such as heart palpitation, hypertension, sweating, fainting, short of breath and so on.91
Anxiety disorder has a very significant evolutionary purpose,92 including the fight or flight response.93 Numerous studies discuss the various risk factors of anxiety94 - including armed conflicts95 - and predict it accurately.96
85 ibid
86 Clark, Lee Anna, Jeffrey Vittengl, Dolores Kraft, and Robin B. Jarrett. "Separate personality traits from states to predict depression." Journal of personality disorders 17, no. 2 (2003): 152.
87 Charlson, F., Ommeren, M. van, Flaxman, A., Cornett, J., Whiteford, H., & Saxena, S. (2019). New WHO prevalence estimates of mental disorders in conflict settings: a systematic review and meta-analysis. The Lancet, 0(0).; Technology networks neuroscience and research. People in War-torn Countries Are Five Times More Likely to Develop Anxiety or Depression. (12 June 2019).
88 ibid 89 DSM-5 90 DSM-5 91 DSM-5
92 Bateson, Melissa, Ben Brilot, and Daniel Nettle. "Anxiety: an evolutionary approach." The Canadian Journal of Psychiatry 56, no. 12 (2011): 707-715.
93 Sapolsky
94 Riskind, John H., Dana Tzur, Nathan L. Williams, Brittany Mann, and Golan Shahar. "Short-term predictive effects of the looming cognitive style on anxiety disorder symptoms under restrictive methodological
conditions." Behaviour Research and Therapy 45, no. 8 (2007): 1765-1777.; Zvolensky, Michael J., Norman B.
Schmidt, Amit Bernstein, and Meghan E. Keough. "Risk-factor research and prevention programs for anxiety disorders: A translational research framework." Behaviour Research and Therapy 44, no. 9 (2006): 1219-1239.;
Lahat, Ayelet, Melanie Hong, and Nathan A. Fox. "Behavioural inhibition: Is it a risk factor for anxiety?." International Review of Psychiatry 23, no. 3 (2011): 248-257.
95 Bell, Vaughan, Fernanda Méndez, Carmen Martínez, Pedro Pablo Palma, and Marc Bosch. "Characteristics of the Colombian armed conflict and the mental health of civilians living in active conflict zones." Conflict and health 6, no. 1 (2012): 1-8.
96 Schmidt, Norman B., Meghan E. Keough, Melissa A. Mitchell, Elizabeth K. Reynolds, Laura MacPherson, Michael J. Zvolensky, and C. W. Lejuez. "Anxiety sensitivity: Prospective prediction of anxiety among early adolescents." Journal of anxiety disorders 24, no. 5 (2010): 503-508.; Lahat, Ayelet, Melanie Hong, and Nathan A. Fox. "Behavioural inhibition: Is it a risk factor for anxiety?." International Review of Psychiatry 23, no. 3 (2011): 248-257.
2.3.4. (Psycho)somatic complaints
(Psycho)somatic disorder refers to a set of related sub-categories.97 It may result in significant disruption of daily life and may last for at least six months, up to a lifetime.98 It may emerge as involuntary motor or somatic functioning.99 Symptoms in relation to the latter may include physical symptoms without a physiological cause, such as pain, insomnia, hypertension, fatigue, headache and so on.100 It may also materialize in forms of thoughts about health.101 (Psycho)somatic complaints are diagnosed by eliminating physiological problems as a possibility.102 As of today there is little understanding of its causes and biological functioning.103 Hence, there is little to no way to apply it to the general population or predict it.
2.3.5. DID
DID refers to the disruption of identity that results in two or more distinct personalities within the same individual.104 It may disrupt one´s everyday functioning and may last for a lifetime.105 The multiple personalities are distinct from each other, which is evident from the alteration of consciousness, memory losses, perception, cognition, sensory-motor functioning and so on.106
As most psychological disorders, DID generally is diagnosed by DSM-5 and other reporting methods, such as self-reporting or family-reporting. However, recent MRI studies show significant alteration in the Hippocampal and Amygdala areas.107 Predictors of DID have been identified, including depression and PTSD,108 which indirectly links it to armed conflicts.
97 DSM-5 98 DSM-5 99 DSM-5 100 DSM-5 101 DSM-5
102 Fava, Giovanni A. "The concept of psychosomatic disorder." Psychotherapy and Psychosomatics 58, no. 1 (1992): 1-12.
103 ibid 104 DSM-5 105 DSM-5 106 DSM-5
107 Vermetten, Eric, Christian Schmahl, Sanneke Lindner, Richard J. Loewenstein, and J. Douglas Bremner.
"Hippocampal and amygdalar volumes in dissociative identity disorder." American Journal of Psychiatry 163, no. 4 (2006): 630-636.
108 Dell, Paul F. "A new model of dissociative identity disorder." Psychiatric Clinics 29, no. 1 (2006): 1-26.
2.3.6. Physical consequences of mental harm
In recent decades researches gathered increasing amounts of proof that mental disorders may cause in physical conditions, such as hypertension,109 cardiovascular disease,110 decreased immune system,111 etc.112
When talking about mental disorders, especially depression, it is necessary to mention suicide as a consequence.113 One may think it is an indirect consequence of armed conflict. However, a comparison can be made to an indirect physiological consequence of armed conflict such as infected wound. As it works with the same principle.
2.4. Causes of mental harm
Mental harm can be caused by numerous triggering events within the context of armed conflicts. Including sexual abuse, 114 separation from parents,115 recruitment into military activity,116 water shortage, nutritional deficiencies, stress of caregivers,117 unnecessary suffering, community destruction,118 displacement,119 exposure to traumatic incidents and
109 Kibler, Jeffrey L., Kavita Joshi, and Mindy Ma. "Hypertension in relation to posttraumatic stress disorder and depression in the US National Comorbidity Survey." Behavioral Medicine 34, no. 4 (2009): 125-132.
[Kibler]; Player, Marty S., and Lars E. Peterson. "Anxiety disorders, hypertension, and cardiovascular risk: a review." The International Journal of Psychiatry in Medicine 41, no. 4 (2011): 365-377 [Player]; Meng, Lin, Dongmei Chen, Yang Yang, Yang Zheng, and Rutai Hui. "Depression increases the risk of hypertension incidence: a meta-analysis of prospective cohort studies." Journal of hypertension 30, no. 5 (2012): 842-851 [Meng]
110 Edmondson, Donald, and Beth E. Cohen. "Posttraumatic stress disorder and cardiovascular
disease." Progress in cardiovascular diseases 55, no. 6 (2013): 548-556 [Edmondson]; Allgulander, Christer.
"Anxiety as a risk factor in cardiovascular disease." Current opinion in psychiatry 29, no. 1 (2016): 13-17 [Allgulander]; Player; Nemeroff, Charles B., and Pascal J. Goldschmidt-Clermont. "Heartache and heartbreak—
the link between depression and cardiovascular disease." Nature Reviews Cardiology 9, no. 9 (2012): 526-539 [Nemeroff]
111 Leonard, Brian E., and Cai Song. "Stress and the immune system in the etiology of anxiety and depression." Pharmacology Biochemistry and Behavior 54, no. 1 (1996): 299-303 [Leonard]
112 The biological mechanism where mental disorders cause psychological consequences is outside the scope of this paper. For in depth explanation see Sapolky.
113 Ghobarah HA, Huth P, Russett B. Civil wars kill and maim people long after the shooting stops. American Political Science Review 2003;97(02):189–202; Garry.; Jeon, Hong Jin. "Depression and suicide." Journal of the Korean Medical Association 54, no. 4 (2011): 370-375.
114 Goldstone, Richard J. "Prosecuting rape as a war crime." Case W. Res. J. Int'l L. 34 (2002): 277.; Mpembi.;
Garry.; Bothe.
115 Bothe.; Peace and Conflict: Journal of Peace Psychology , Vol 4(4), Dec, 1998. Special Issue: The Graça Machel/UN Study on the Effects of War on Children. pp. 321-334. Peace Conflict J. [PCJ]
116 Bothe.; PCJ
117 Bothe.; Gordon.; Garry.; PCJ 118 Bothe.; PCJ
119 Shultz, James M., Dana Rose Garfin, Zelde Espinel, Ricardo Araya, Maria A. Oquendo, Milton L.
Wainberg, Roberto Chaskel et al. "Internally displaced “victims of armed conflict” in Colombia: the trajectory and trauma signature of forced migration." Current psychiatry reports 16, no. 10 (2014): 1-16.; Gordon.; Garry.
violence,120 loss of protective factors,121 stress caused by migration and reintegration,122 and so on. These are just few of the many examples how mental harm may emerge during violation of IHL.
Exposure to traumatic incidents and violence is probably the most commonly occurring triggering event during armed conflicts that may cause mental harm.123 It is a rather general and broad notion, however, such broad understanding is necessary considering the extensive scope encompassed by Hague and Geneva law.
Due to their high risk factor, woman are afforded additional protection under IHL, including mental harm.124 A general issue in that regard is sexual abuse, especially rape. Sexual abuse is prohibited under IHL, as well as it is specifically mentioned under article 8 of the Rome Statute.125 Evidence suggests that sexual abuse during armed conflict may cause mental harm.126 Sexual abuse generally takes shape in physical form, which then has both physical and mental consequences. However, individual criminal responsibility arises from the physical harm. Nevertheless, this does not clarify individual criminal responsibility for the purpose of mental harm. For instance, could individual criminal liability arise from an imminent threat of rape?
Forced displacement of persons is prohibited under IHL.127 Displacement is capable of producing serious mental effects to the persons concerned,128 and by extent distress caused by family members due to the uncertainty about the well being of the loved ones that were displaced.129 However, not only displacement, but also migration and attached issues, such as integration cause mental harm to civilians.130 Which in turn may lead to mental health issues due to community destruction.131
120 Gordon.; Garry.; Global Coalition to Protect Education From Attack. Lessons in war 2015: military use of schools and universities during armed conflict. 2015 [Global Coalition to Protect Education]; Shenoda.
121 Gordon.; Garry.
122 Garry.; Bogic.
123 Gordon.; Garry.; Global Coalition to Protect education .; Shenoda.
124 ICRC CIHL Volume I p 476, AP II art 4, 5 125 Rome Statute art 8 2 (b) (xxii) and (d) (vi) 126 Mpembi.; Garry.; Bothe.
127 ICRC CIHL Volume I p 425; UN Human Rights Committee, Quinteros v. Uruguay para 186 The views of the Committee were based, inter alia, on Article 7 of the American Convention on Human Rights.
128 Gordon.; Garry.
129 UN Human Rights Committee, Quinteros v. Uruguay; ICRC CILH Volume I 130 Garry.; Bogic.
131 Bothe.; PCJ
A related issue is superstition of families. According to CIHL Rule 105, separation of children from their parents is prohibited, as actors shall respect the entity of family.132 Evidence indicates that separation from parents has severe psychological impact on children.133 Thus, the separation itself is a physical act. However, it nonetheless has psychological consequences.134 It is important to note that, even the fear of loss of family may result in severe mental harm to civilians.135 The same principle is applicable to loss of financial stability.136 Such financial instability may be threatened by block of roads, burning of crops or blocking access to water, which is prohibited under IHL.137
Right to nutrition is covered under several points of IHL, including in relation to inhumane and degrading treatment, depravation of liberty, blocking nutrition and so on.138 According to scientific evince, water shortage, nutritional deficiencies, and stress of caregivers are each capable of producing mental harm.139 For instance, not providing sufficient food to captured persons may have severe consequences on a prisoner of war, and it may amount to inhumane and degrading treatment. This example is also confirmed by IHL providing protection of POW’s mental health.140
Inhuman and degrading treatment and torture have a very extensive scope in addition to the aforementioned issued.141 It is prohibited under IHL, with explicit reference to mental harm.142
IHL also prohibits recruitment of children.143 This prohibition is expressly stated in article 8 of the Rome Statute.144 Literature indicates that recruitment into military activity has a significant negative impact on children´s mental health.145 To that extent child soldiers, as well as other soldiers may be subject to extensive psychological harm, which may amount to unnecessary suffering, as prohibited under art 8 of the Rome Statute.146
132 ICRC CIHL Rule 105 133 Bothe.; PCJ
134 Bothe.; PCJ 135 Gordon.; Garry.
136 Gordon.; Garry.
137 ICRC CIHL rule 54 138 ICRC IHL
139 Bothe.; Gordon.; Garry.; PCJ 140 ICRC CIHL p 331, GCIII art 49 141 ICRC CIHL volume I p 317-318
142 ICRC CIHL volume I p 317-318, Rome Statute art 8 (2) (a) (ii) 143 ICRC CIHL rule 136
144 Rome Statute art 8 (b) (xxvi) and (d) (vii) 145 Bothe.; PCJ
146 Rome Statute 8 (2) (b) (xx)
2.5. Conclusion
This chapter assessed the relationship between mental harm and armed conflict. It became clear that armed conflict can cause serious mental harm,147 including but not limited to PTSD,148 depression, 149anxiety, 150 insomnia,151 psychosomatic complaints,152 DID,153 and other considerable forms of armed conflict induced mental conditions. Effects of which may be very severe,154 and can have physiological consequences,155 including hypertension,156 cardiovascular disease,157 decreased immune system,158 etc.159 It can be caused by several acts prohibited under IHL, including sexual abuse, 160 separation from parents,161 recruitment into military activity,162 water shortage, nutritional deficiencies, stress of caregivers,163 unnecessary suffering, community destruction,164 displacement,165 exposure to traumatic incidents and violence,166 loss of protective factors e.g. family and financial stability,167 stress caused by migration and reintegration,168 and so on. Provided that it is severe enough, they are capable of destructing everyday life of persons and may last a lifetime.169 Generally, mental harm is diagnosed via DSM-V but also other methods are reliable such as MRI. Such reliable methods are capable of providing the means to develop reliable predictive framework of most mental harms caused by armed conflict.
147 ibid (n 5)
148 Jansen; Mpembi; Fares; Solomon on Quasi-judicial Bodies 149 Jansen; Sapolsky; Garry.; Attanayake; WHO.
150 Jansen; Garry.; Attanayake; WHO; Sapolsky 151 Mpembi.
152 Attanayake; WHO 153 Özdemir
154 Gray and Bjorklund.
155 Sapolsky
156Kibler; Player.; Meng.
157 Edmondson; Allgulander; Player.; Nemeroff.
158 Leonard.
159 The biological mechanism where mental disorders cause psychological consequences is outside the scope of this paper. For in depth explanation see Sapolky.
160 Mpembi.; Garry.; Bothe.
161 Bothe.; PCJ 162 Bothe.; PCJ
163 Bothe.; Gordon.; Garry.; PCJ 164 Bothe.; PCJ
165 Gordon.; Garry.
166 Gordon.; Garry.; Global Coalition to Protect education .; Shenoda.
167 Gordon.; Garry.
168 Garry.; Bogic.
169 DSM-5
CHAPTER 3 – LEGAL ASSESSMENT: MENTAL HARM AND THE LAW 3.1. Introduction
In the previous Chapter it became clear that, acts prohibited during armed conflict may cause several forms of serious mental harm. Thus, the question of individual criminal responsibility arises, which is regulated under article 25 of the Rome Statute.170
War crime is listed as one of the four core crimes and further regulated under article 8 of the Rome Statute.171 It prohibits any violations of the International Humanitarian law (IHL), including the Hague law and Geneva law, other laws and customs applicable either in cases of international armed conflicts (IAC) or non-international armed conflicts (NIAC).172 The elements of war crimes for the meaning of article 8 (2) of the Rome Statute shall be interpreted in accordance with existing international law.173 Hence the following sources will we looked at; Rome Statute, Elements of Crimes, IHL (Geneva law, Hague law, IHL principles, custims), case law of international courts on war crimes, and other sources of law including national and international law.
This chapter aims to answer the following questions:
- When can individual criminal responsibility be triggered in general?
- What does article 8 of the Rome Statute says about mental harm as a war crime?
- To what extent is mental harm regulated under IHL?
- How is mental harm regulated under other sources of law, including international law, national law?
- May mental harm trigger individual criminal responsibility under article 8 of the Rome Statute?
170 Rome Statute art 25 171 Rome Statute art 8 172 Rome Statute art 8 173 EoC p 13
3.2. Liability
Article 25 of the Rome Statute provides the possibility to hold persons accountable in the form of individual criminal responsibility,174 given that the accused has violated one of the four core crimes (including war crime) provided under article 5 of the Rome Statute and jurisdictional aspects are met.175
3.2.1. Jurisdiction
Individual criminal responsibility under the ICC´s regime possesses a wide scope.176 As unlike other international criminal courts, ICC is not event specific, thus it has jurisdiction over any international crimes that fall under article 5 of the Rome Statute.177 So long as jurisdiction ratione loci, ratione personae and ratione temporis are met. This is significant, as any war crim that fall under article 8 of the Rome Statute178 fall under the jurisdiction of the court, provided that other jurisdictional aspects are met.
However, it is to note that ICC possesses complimentary jurisdiction.179 Meaning that ICC only has competence over crimes if the competent state is unable or unwilling to execute the person.180
3.2.2. Individual criminal responsibility
Article 25 of the Rome Statute regulates individual criminal responsibility under the ICC´s regime.181 Individual criminal responsibility refers to the liability arising as for international crimes182. According to Rule 102 of the ICRC Rules on CIHL, individual criminal responsibility is applicable both to IAC and NIAC situations.183
Throughout the EoC, the ICC constantly uses the term conduct instead of act.184 This allows individual criminal responsibility to encompass both acts and omissions.185 Additionally,
174 Rome Statute art 25 175 Rome Statute art 5
176 Guilfoyle p 104-115, Cryer p 154 177 Cryer p 146-150
178 Rome Statute art 8(2)(b)(i) 179 Rome Statute art 1 180 Rome Statute art 17 181 Rome Statute art 25 182 Cryer
183 ICRC CIHL Volume I Rule 102 184 EoC
185 Maria Kelt and Herman von Hebel ´The Making of Elements of Crimes1´ in Roy S K Lee and Håkan Friman The International Criminal Court : elements of crimes and rules of procedure and evidence
individual criminal responsibility does not only apply upon the actual emergence of the crime, but the mere attempt suffices.186 Thus, one does not have to succeed in carrying out the crime, so long as they attempt to do so.187 For the purpose of mental harm this is very important. This broadened scope is important, as physical harm is unlikely to occur if no physical act is carried out. However, mental harm (distress, anxiety, etc.) may emerge without a physical event.
Under the ICC´s regime, there are several modes of participation.188 Individual criminal responsibility may be triggered by being directly carried out by the perpetrator or indirectly through another person.189 Moreover, three forms of perpetration can be identified under article 25(3)(a) Rome Statute; individually, jointly or through another person.190 Firstly, individual commission of a crime, refers to a person him/herself personally carries out a crime.191 Joint perpetration refers to a crime, whereas a person carries out an essential task of a crime, committed together with others.192 Where the group has a common purpose.193 Finally, commission through another person refers to a crime, where the person has control over the will of the person who carries out the physical conduct.194 This letter includes ordering, soliciting, or inducing a crime.195 Moreover, individual criminal responsibility may also be triggered by aiding, abetting, or assisting a crime.196 Here it is to note that, under article 28 of the Rome Statute, military commanders may be held liable for actions of their subordinates.197
(Transnational Publisher, 2001) p 14 186 Rome Statute art 25(3)(f) 187 Cryer
188 Cryer; Guilfoyle
189 Cryer; A. Cassese, P. Gaeta, Cassese’s International Criminal Law (3rd ed., Oxford: Oxford University Press, 2013)
190 Rome Statute art 25
191 Situation in the Democratic Republic of Congo in the Case of the Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (Decision on Confirmation of Charges) ICC-01/04-01/07 (30 September 2008) para 488. [Katanga (n 62)]
192 Katanga (n 62)
193 Rome Statute art 25(3)(d) 194 Katanga (n 62)
195 Rome Statute art 25(3)(b) 196 Rome Statute art 25(3)(c)
197 Rome Statute art 28; Noam Lubell and Amichai Cohen, ‘Strategic Proportionality: Limitations on the Use of Force in Modern Armed Conflicts’ (2020) 96 Int’l L Studies 159, 174.; Solomon on Quasi-judicial Bodies
3.3. Mental harm under the law 3.3.1. Rome Statute
Article 8 of the Rome Statute regulates war crimes, for the purpose of the ICC. Which states the following:
“1. The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
2. For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention […]
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts […]
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause […]
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of
