ARMED CONFLICT AND THE PROTECTION OF CIVILIANS: LEGAL OPTIONS AND OBLIGATIONS, INCLUDING FOR CANADIAN ARMED FORCES, CONCERNING THE INCLUSION OF MENTAL INJURY WHEN DETERMINING “INJURY TO CIVILIANS”

Abstract

Psychological harm resulting from armed conflict is well documented. Parties to armed conflicts must assess the level and type of injury to civilians when implementing the rules of precautions and proportionality in their conduct of hostilities. Mental health issues arise as a result of armed conflict and yet mental injury is not included in the precautions or proportionality analysis. In light of the recognition of the scope and scale of mental injury that results from armed conflict, the scope and scale of injury suffered by civilians is not being accurately captured. This paper adds to the existing literature which contributes towards clarifying the responsibilities of parties to armed conflict. The paper reviews treaty law, case law and legally non-binding persuasive sources as well as results from other disciplines in order to determine if the inclusion of mental injury would run contrary to the law or if it would improve the interpretation of the law. The paper finds there are no legal grounds to exclude mental injury and that in order to ensure that IHL remains relevant, a better understanding of the true scope and scale of injury to civilians must be better understood by parties to armed conflicts.