About the author(s):
Samantha Holmes is a Research Associate at the Centre for Applied Human Rights (CAHR) and York Law School. She is also a member of the Beyond Compliance Consortium’s research programme “Building Evidence on Promoting Restraint by Armed Actors”. Her ongoing research explores the impacts of war on mental wellbeing and the vulnerabilities of children in war. She has also collaborated with Watchlist on Children and Armed Conflict to research grave violations against children. Samantha holds an LLM in International Human Rights Law and Practice from the University of York, and an LLB from Queen Mary University of London. Before commencing her research into law and armed conflict, she built her early career in human rights law practice for non-governmental organisations in Southeast Asia, specialising in civil and political rights, legal analysis, UN advocacy, and the Cambodian context.
Editors’ note: This post forms part of the Beyond Compliance Symposium: How to Prevent Harm and Need in Conflict, featured across Articles of War and Armed Groups and International Law. The introductory post can be found here. The symposium invites reflection on the conceptualisation of negative everyday lived experiences of armed conflict, and legal and extra-legal strategies that can effectively address harm and need.
Just as bombs penetrate deep into the ground, so too do the impacts of war on people, burying below the surface and inflicting damage not always visible. Narratives of the negative impacts of war—particularly those centring ‘civilian harm’—are dominated by physiological harms and often reduced to casualty counting. Nonetheless, life and limb are not all that are threatened in armed conflicts. War’s impacts on mental health and wellbeing are profound and pervasive, yet International Humanitarian Law (IHL) theory and practice has long overlooked them. This blog seeks to bring these harms to the fore so they can receive due recognition by policymakers and humanitarian practitioners and to contextualise the need for greater law and policy protections against mental harm.
A non-pathologising approach to mental health
In this blog post, harm to mental and emotional wellbeing (referred to in short as mental harm) is used in its expansive sense to include challenges, impacts, injuries, illnesses or impairments (or the need for support) of a psychological, spiritual, psychiatric, cognitive, behavioural or emotional nature. This post acknowledges the Western-dominated narrative on mental health, including the dichotomous conceptualisation of the body and the mind as distinct and separate—which is itself a Western construct. The absence of diverse and minority perspectives in the dominant dialogues on mental health, including within the context of international law, has produced a narrow construct that prioritises experiences and approaches of the Western world. This post is acutely mindful of the negative implications of imposing Western concepts of mental health and mental harm without considering social, cultural, religious, and spiritual diversities.
For example, Pupavac critiques the ‘imposition of a Western therapeutic model on other societies, which have their own coping strategies’ and observes the impacts as: abnormalising normal psychological reactions to acute circumstances; intruding in the personal sphere with the risk of corroding cohesive family and community bonds necessary for overcoming trauma; and disempowering populations by projecting them as incapacitated, permanently vulnerable, and indefinitely dependent on external actors for psychological support (p 490-493). Pupavac eloquently notes that:
When all the psychological terms are stripped away, we appear to be left with individuals’ or communities’ own responses being displaced or instrumentalized by outside professionals, informed by presumptions of the disablement of recipient populations.
Therefore, this post employs a decolonial perspective of mental harm, rejecting purely Western diagnostic or clinical narratives that pathologise approaches to, or understandings of, mental wellbeing that may sit outside contemporary medical healthcare systems, bio-medical approaches, or the study of psychology. Simply put, one cannot view harms to mental wellbeing on a global scale through a Western lens.
The mental harms of war
War hampers mental and emotional wellbeing and can instigate or exacerbate mental illness among all those in, around, and adjacent to the conflict, as well as those observing the conflict vicariously. There is a large catalogue of empirical research evidencing the mental health impacts of armed conflicts. A 2019 World Health Organisation (WHO) systematic review of UN figures estimated that the prevalence of mental health disorders in conflict-affected populations was 22.1%. For context, a global mean estimate of mental health disorder prevalence worldwide in 2021 was 13.9%. Empirical evidence has determined that depression, anxiety disorders, and traumatic stress are the most prevalent mental health problems identified in individuals affected by armed conflict. Figures of mental harm for war-affected populations vary significantly according to the type of mental harm observed and the duration and intensity of the conflict. A systematic review of post-traumatic stress disorder (PTSD) in refugee and conflict-affected persons across 40 countries found the prevalence rate as 30.6%, whereas a study of children who survived the Rwandan genocide found that 79% of the children interviewed indicated high levels of distress which could meet the threshold for PTSD. Higher still is the estimated percentage of 10 to 19-year-olds in Gaza experiencing PTSD which was reported as 97.5% in 2021.
In itself mental harm is difficult to quantify and resultantly, most reported numbers rely on a Western therapeutic framework which imposes thresholds of diagnostic criterion as a basis to conclude whether a mental health illness or disorder is present. Consequently, the aforementioned figures do not present the full picture of mental wellbeing impacts. Reflecting the true scale in narratives around mental harm in war is pivotal to represent an honest picture of the costs of armed conflict and to ensure accountability.
Some researchers record manifestations of mental harm outside of diagnostic-criterion, such as Save the Children’s 2022 study of children’s mental health in Gaza following the major escalation of violence in May 2021 and Israel’s 11-day assault on Gaza. The study found that 80% of children were experiencing severe emotional distress, 79% bedwetting, and 59% reactive mutism. Similarly, a recent research report by Ground Truth Solutions and Arab World for Research and Development on community priorities and perceptions of aid and mutual support in Gaza, emphasises the severe mental health needs among the population, but does not do so from a diagnostic perspective. Rather, it uses a more holistic approach to perceptions of mental harm and discusses emotions such as fear, feeling unsafe, and fatigue (p 6).
Mental harm in war is experienced in a variety of ways. While the dominant approach conceives of mental harm on a purely individual level, some psychology subfields have warned against individualising trauma, acknowledging that mental harm can also have collective, community impacts beyond individual experiences (e.g., fear from weaponised drones can fracture communities, hamper community interactions, and cause social isolation). Mental harm can be caused directly from acts of war or violence (e.g., PTSD from involvement in conflict or from witnessing an explosion) or indirectly (e.g., experiences of depression through the grief of losing a loved one). Mental harm in war does not have temporal limitations; it can emerge immediately, be delayed, or develop slowly as a knock-on effect of other harms of war—referred to as reverberating harms. For example, experiencing the reverberating socio-economic impacts of war can cause mental health harm. Reverberating mental harm can also emerge post-conflict, and can be intergenerational, such as stigma caused by being born out of conflict-related sexual violence.
Despite the profound harm armed conflict inflicts on mental and emotional wellbeing, the physical impacts of war continue to be prioritised in law, academia and practice.
International Humanitarian Law’s mental health protections
IHL does impose some protections against harms to mental health inflicted in times of conflict, though it is primarily limited to intended harm. Article 51(2) of Additional Protocol 1 to the Geneva Conventions (AP1) prohibits acts or threats with the primary purpose of spreading terror among civilians. This provision (which has been held to apply as a matter of custom in both international and non-international armed conflicts) was further expanded on by the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Galic who, when discussing the prohibition as a war crime, referred to it as ‘attacks designed to keep the inhabitants in a constant state of terror’ that cause ‘extensive trauma and psychological damage’ (Appeal Judgement para 102).
Protections against unintended or incidental harm to mental health are not as plainly apparent within IHL. Some have interpreted IHL provisions as extending to prohibitions of some degrees of incidental mental harm, but this view is not universal. Gillard interprets the duty to take constant care to spare the civilian population under Article 57(1) of AP1 as requiring the consideration of mental health impacts (p 33). Schmitt and Highfill also observe that this provision is not limited to the types of harm governed by the proportionality principle. Wilkinson additionally raises the prohibition of causing ‘superfluous injury or unnecessary suffering’ under Article 53(2) of AP1, and questions whether it too could be a source of protection against mental health harms in war. There is no jurisprudence to support or reject these interpretations.
Legal blindspot: Reconciling the proportionality paradigm with mental harm
The central point of controversy around IHL’s protection against incidental mental harm lies within the principle of proportionality. Indeed, the contemporary discourse on civilian harm—which has been critiqued for its prioritisation of physical harm and omission, depreciation, or obfuscation of the mental and emotional wellbeing impacts of war—is traceable to and/or reinforced by the wording of IHL’s proportionality principle. Enshrined in AP1, it prohibits attacks that cause excessive harm in relation to the concrete and direct military advantage anticipated, but fetters analyses of proportionality of attack to considerations of ‘incidental loss of civilian life, injury to civilians, damage to civilian objects’ (Article 51(5)(b)). Within this provision, ‘injury’ is predominantly interpreted in the purely physical dimension.
However, the proportionality principle might not be as much of a barrier as it first appears. Experts are increasingly observing that there is no reason in principle to exclude mental harm from the proportionality rule (Sutton and Gillard p 13; Schmitt and Highfill p 92; and Wilkinson). Some, though not all, experts who took part in an ICRC-organised discussion on the principle of proportionality in 2016 noted that its wording does not expressly limit it to physical injury and called for the principle to be interpreted dynamically, in line with its object and purpose, to account for contemporary understandings of the impact war has on mental health (p 35). A similar view is taken by Knuckey et al who argue that the humanitarian and military interest in reducing civilian suffering, alongside scientific advances into mental health conditions ‘are compelling reasons of principle and policy to include mental harms in a proportionality analysis’ (p 368). However, concerns over operationalisability are maintained by all these authors.
In his seminal chapter ‘Beyond Life and Limb’, Lieblich rebuts the operationalisation challenges and does not perceive them as a barrier to including incidental mental harm within IHL’s proportionality equation. He argues that to do so is a natural evolution of IHL’s focus on civilian protection (p 189 and 194).
There is also a vein of literature that posits that mental harm already is encapsulated by the law on proportionality. Most supporters of this view rely on the Tallinn Manual on Cyber Warfare (see for example, one member of the International Law Association Study Group on the Conduct of Hostilities in the 21st Century (p 359)). The Tallin Manual 2.0 considers the notion of injury, in the context of the definition of a cyber-attack, to extend to ‘serious illness and severe mental suffering that are tantamount to injury’ (p 417).
A hierarchy of harm: A decolonial critique
While these progressive interpretations are contributing to the reconciliation of the principle of proportionality with harms to mental health, they reflect a primarily Western perception of mental health (p 452). Lieblich fetters his extended application of the proportionality principle to the ‘most serious, well studied forms’ of ‘tangible’ mental harm that can be measured through an established diagnostic criterion (p 191 and 205). Schmitt and Highfall also limit their interpretation of mental harm to be considered in proportionality analyses to traumatic brain injuries (p 92).
Problematically, Lieblich refers to PTSD as ‘the chief mental harm relevant to effects of warfare’ (p 203). While PTSD is one of the most prevalent mental health problems identified in individuals affected by armed conflict (as noted above) we must not omit the plethora of harms outside the diagnostic criterion for PTSD. Indeed, painting PTSD as the apex of mental harm in war reflects an outdated, combatant-centred approach to mental harm. This approach risks shaking off the hierarchy between physical and mental harm only to impose a hierarchy within types of mental harms themselves.
The invisiblisation of civilian (mental) harm in practice
In their narrow application of IHL’s principle of proportionality, militaries and other armed actors appear to largely omit considerations of mental harm. For example, the US Department of Defense’s latest instruction on Civilian Harm Mitigation and Response (CHMR) maintains a narrow conceptual definition of civilian harm constrained to ‘civilian casualties and damage to or destruction of civilian objects’. Though it appears to broaden harm mitigation efforts to include ‘other adverse effects on the civilian population’—which could foreseeably include mental harm—it only requires their consideration ‘to the extent practicable’ rather than the degree of mandatory consideration imposed for its narrower category of physical harms.
This approach to civilian harm is echoed by organisations applying an IHL-compliance frame, who narrow their understanding of civilian harm accordingly. For example, Airwars and AOAV’s Explosive Violence Monitor record deaths and injuries in armed conflicts—crucial accountability tools—yet they present their activities (and their mission) as civilian harm monitoring and do not reference the landscape of civilian harms beyond their narrow, physical scope. While the need to observe and record mental harm in war should not detract from existing efforts to casualty count, the latter should be cautious of depicting physical harms as the only, or the most pressing, form of civilian harm. Edney-Browneobserves ‘[w]ithin their own walls, monitoring organizations and NGOs may be concerned about psychosocial harms… but this is outweighed by the practical requirement to hold militaries to account using international law’ (p 1,345).
Similarly, the ICRC’s handbook for armed actors on reducing civilian harm in urban warfare, while mentioning the ‘lasting psychological scars’ of urban warfare in the introduction, makes no further reference to reducing harms to mental wellbeing and uses physical harm examples throughout. As Lieblich says, mental harm is simply set aside when push comes to legal shove.
Some UN fact-finding missions and mandates (those working within and outside of the IHL framework) also limit their monitoring of civilian harm to physical manifestations. For example, the UN Secretary-General in his Protection of Civilians in Armed Conflict reports and the UN’s Children and Armed Conflict agenda which monitors six grave violations, but omits accountability for a vast scope of non-physical harms children experience, including mental harm.
Looking beyond life and limb in practice
Nevertheless, there is a breadth of scholars and practitioners who encourage a broader understanding of civilian harm. PAX find it necessary to consider the ‘significant and long-lasting psychological impact’ of war in the conceptualisation of civilian harm. The Center for Civilians in Conflict (CIVIC) also include within their definition of civilian harm, ‘physical and psychological injury’ and acknowledge that mental harm can be both a direct and indirect consequence of warfare. Open Society Foundations (OSF) define civilian harm as ‘damage from military operations to personal or community well-being [including]… loss of livelihoods and other economic impacts, and offenses to dignity’ (p 10). In his latest report on the protection of civilians in armed conflict, the UN Secretary-General embraces a broad understanding of civilian harm which includes both individual and societal ‘mental trauma’ (paras 54 and 59).
Some actors implementing the IHL framework have begun to take steps towards greater consideration of mental health impacts of war. Progressively, NATO’s revised joint targeting doctrine issued in 2021 requires the consideration of collateral damage ‘in the virtual and cognitive dimensions’ in assessing the proportionality of the military advantage of an attack (Chapter 1 Section VII 1.7(i)). It acknowledges the challenges of predicting this type of harm comparatively to physical harm but does not see issues of foreseeability as a barrier to its consideration in targeting determinations. It is unclear whether this inclusion is driven by an interpretation that IHL mandates such considerations or not.
Concluding observations
Mental harm does not only exist in our minds, it can have pervasive impacts on emotional, cognitive and physical wellbeing, impede quality of life, have community-wide and cross-generational impacts, it can alter the structures of societies, and can be fatal for individuals and their dependents. In order to appreciate the expansive and complex experiences of harm inflicted by armed actors on those living through armed conflicts, it is clear that harms to mental and emotional wellbeing cannot continue to be pushed aside nor forced into Western categorisations that divorce the experiences from the lived reality of civilians. An inclusive and holistic law and policy interpretation of civilian harm that does not take civilian casualties as its focal point, but rather places equal emphasis on mental and emotional harms to physical ones, would encourage the just consideration of mental harm in civilian harm prevention and mitigation efforts and ensure the full human cost of war is observed.
