Beyond Life and Limb: Exploring Incidental Mental Harm under International Humanitarian Law
In Derek Jinks, Jackson Nyamuya Maogoto & Solon Solomon (eds.), Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies: International and Domestic Aspects, T.M.C. Asser Press (2014), pp. 185-218
34 Pages Posted: 10 Jun 2013 Last revised: 3 Mar 2015
Date Written: June 10, 2013
In recent years, much effort has been made, in different forums, to clarify some of International Humanitarian Law’s (IHL) more vague standards. However, little attention has been given to the meaning of the concept of civilian harm. This chapter seeks to contribute to the understanding of harm by exploring, in a preliminary manner, an uncharted question: the issue incidental mental harm under the proportionality principle of jus in bello. The chapter asks first whether the inclusion of incidental mental harm in the proportionality calculus is a utopian suggestion, upsetting the delicate balance of IHL. It thereafter exemplifies IHL’s seeming blind-spot with regards to the issue, concluding that the lack of direct treatment of the concept does not amount to its negation. The chapter then critically explores possible challenges to the recognition of incidental mental harm, positing that these are not convincing. All in all, the chapter asserts that it is high time that states, commanders, judges and fact-finding missions take incidental mental harm seriously, if IHL is to maintain its integrity as a legal field setting out to minimize civilian harm.
Keywords: International Law, International Humanitarian Law, Proportionality, Targeting, Law of Armed Conflict, International Human Rights Law, Mental Harm, Targeted Killing, Protection of Civilians
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By Naomi Cahn