Concretizing Mental Harm: Warfare's Psychological Impact on Civilians and the Return to Domestic Law for Establishing a Standards-Setting Paradigm

Abstract

Copyright © 2021 The Author. International criminal courts and tribunals do not assess warfare’s psychological impact on civilians in a scientifically consistent way. In some instances, they refer to mental health expert opinions in general, whereas in others they completely ignore any such expert opinions. The problem is further exacerbated by the fact that domestic courts avoid referring not only to expert opinions, but also to the notion of the civilians’ sustained mental harm altogether. This acquires additional importance given the augmenting role domestic courts have come to play the last few years in conducting the trials of crimes related to warfare.

On that account, this Article lays out the way mental harm has been discussed in domestic law in a number of jurisdictions and how it can set a standard for such mental harm discussion both by other domestic courts as well as by the International Criminal Court.