Last month’s ballistic missiles’ barrage undertaken by the Yemen-based Houthi rebels against Saudi Arabia comes to be added to the almost 100 missiles that have been fired against the Kingdom since past November. With these missile attacks spreading fear (see also here the Jordanian condemnation of the attacks and the stress put on the terrorization of the civilians), they bring to the forefront the question of how recurrent attacks can impact on the affected civilians’ psychological health and whether such impact can have a legal significance for the legality of the undertaken force. The question of incidental civilian fear, namely the fear incurred to civilians absent any prior intentions from the attacker’s part, has been pertinent in the past in instances where aerial attacks have caused psychiatric disorders like PTSD to the affected civilians (see here for the trauma incurred to Israeli civilians as a result of the Gaza rocket attacks and here for the PTSD suffered due to the U.S. drones policy), but has not been addressed so far systematically by courts.
The importance of taking into account incidental civilian fear amounting to trauma as a legal consideration is highlighted by studies (see also here, here, here and here) which have shown how trauma symptoms emerging from exposure to warfare can persist long after hostilities end. These studies have also demonstrated how the more the attacks augment in number and frequency, the more likely it is for the affected civilians to be diagnosed with psychiatric disorders. Translated in the proportionality balance terms the laws of war endorse, this means that the more serious the incurred harm, the higher the chances for the attack to be unlawful.
At the same time, the emergence of trauma as a result of such attacks is not meant to serve as a veto but as a vetting parameter for the continuation of the operations. The idea is not for such trauma-related fear to be a ground altogether for the cessation of any military operations or for their ban. Rather such fear can constitute the basis for an operational adjustment to such a degree that temporary gaps between each attack or alterations in the operational mode (i.e. flight altitude or order of targeting pre-selected targets so that two targets in close vicinity are not targeted immediately one after the other) will lessen the attacks’ impact on the civilians’ psyche, permitting the latter to take respites and not leading to a situation where the trauma symptoms will be accumulated, evolving into a psychiatric disorder.
I. Is there a place for incidental civilian fear under the current legal framework?
So far, the mental harm caused by recurrent attacks has been deemed to fall in the realms of the war crime of intentionally causing terror to civilians. This has been the case with the rocket attacks from Gaza and a similar position has been implied also in the case of the missile attacks launched by the Houthis against Saudi Arabia. Such a stance echoes the ICTY jurisprudence in cases like that of Dragomir Milosevic where the Chamber held that the repeated, indiscriminate shelling of Sarajevo led to the conclusion that the attacking forces had the intention to cause terror to the besieged civilians. (see here, para.912)
Yet, it is doubtful whether the inference rather than beyond reasonable doubt assertion of a crime’s mens rea meets the legality principle. Moreover, the indiscriminate nature of the weapons used is not always a sufficient indication for such an inference. Sometimes, non-state groups launch rockets which do not have a targeting precision, because they lack the know-how to launch more sophisticated missiles and not because they want to terrorize the enemy civilians. (see here for the Houthi rebels’ argument that the target of their attack was King’s Salman palace and here for the fact that Hamas believes that it is striking military targets when it aims its attacks against Israeli civilians). Furthermore, in cases where precise weapons are used to hit the selected targets should we say that because of this precision, the intention to terrorize civilians cannot be inferred and thus the fear civilians experience should not have a legal significance?
These questions highlight the importance of detaching civilian fear from the attacker’s intentions. Scholars have already argued for the inclusion of incidental civilian fear as part of the jus in bello proportionality balance. States on the other hand have been reluctant to adopt such a view out of fear that the inclusion of mental harm considerations, difficult to be measured and assessed in real time, poses serious hurdles for the taking of operational targeting decisions and the continuation of ongoing operations. For example given that warfare causes by definition fear, how can the military commander know during an ongoing operation at which point such fear will be transformed to PTSD or other psychiatric disorders? Or, given that some of the civilians will experience such trauma symptoms, how can the commander know in real time if this is the case for the majority of the affected civilians or it constitutes an exception? It has been argued that such foreseeability issues can be addressed through resort to algorithms but even then, the anticipated military advantage can always be cited as a parameter from the commander’s side sanctioning the continuation of the mission.
II. Incidental civilian fear: can it be accommodated?
The aforementioned considerations are indeed serious enough in order to pose a hurdle to the practical consideration of incidental civilian fear during the actual use of force in the course of a military operation. Yet, such considerations should not mean that incidental civilian fear cannot be taken into account in all cases. Rather, there are some points that stress the differences between isolated expeditions on one hand and recurrent attacks on the other, allowing the endorsement of such fear in the latter.
The first point is that in recurrent attacks, the need for the military mission to provide a military advantage is often not clearly defined, but rather mixed with political objectives. For example, in the latest Syria strikes, the ‘overall’ military advantage of degrading Assad’s chemical weapons’ capacity was quickly blurred with statements that the U.S. will not leave militarily Syria unless other goals were achieved, including the defeat of the Islamic State and the better surveillance of the Iran activities in the region. Moreover, as the U.S. drone strikes have demonstrated, in recurrent attacks the military advantage is often placed in a wider framework that ends up being amorphous (the war on terror in general as a concept in contrast to the question of how the killing of a particular individual can tangibly satisfy the military advantage requirement in the realms of a particular operation).
Secondly, in recurrent attacks, due to their repetitive mode, their effects cannot be examined on an isolated basis but as part of a wider repeated pattern. The incurred psychological harm ends up having a cumulative function on the civilians’ psyche, rendering more prone the transformation of fear to trauma. Finally, whereas in isolated attacks the military commander cannot easily predict the psychological repercussions in the heat of the battle as the operation untangles, he can do so in recurrent attacks which come one after the other with a temporal distance.
III. Reasons for accommodating incidental civilian fear in the laws of war: The contribution of the human rights discourse
It is not only that international law is amenable to an accommodation of incidental civilian fear but it can be argued that such an accommodation is even desirable. On these grounds, human rights law serves as a catalyst. As it has been widely held both by scholars as well as by international quasi-judicial and judicial bodies like the U.N. Human Rights Committee and the International Court of Justice, human rights apply concurrently with the laws of war. In that sense, the trauma incurred to the affected civilians must be seen not only from a jus in bello perspective but also as an infringement of these persons’ right to mental health. The latter is consider to constitute a facet of the right to health, pronounced in article 25 of the U.N. Declaration of Human Rights as well as article 12 of the International Covenant on Economic, Social and Cultural Rights. As a result, incidental civilian fear as a human rights consideration is not so much about a proportionality balance but about the need to see the affected civilians as human beings alongside the principle of humanity. Recurrent attacks, due to their repetitive mode, may be viewed as violating this principle. (see here, para.526).
IV. Incidental civilian fear: The mirroring peacetime-wartime effect as an indication of a state attitude in cases of recurrent attacks
While the previous section expresses the aspired role human rights law can play, it is equally true that the harm incurred to enemy civilians is currently viewed under the proportionality principle the laws of war establish. In contrast, human rights law is the applicable regime once such harm refers to a state’s own citizens. This practically means that the same number of civilian physical casualties may render certain military actions lawful if these casualties are foreign civilians and are considerably less than the combatants also killed, and unlawful if the same civilian casualties refer to a state’s own nationals.
On the contrary, in psychological casualties the legal appraisal of the outcome of military actions is always the same, no matter whether incidental civilian fear refers to foreign civilians or to a state’s own citizens. Equally, any state denouncement of army actions causing incidental civilian fear during peacetime can be seen as mirroring an equal disapproval once such actions are undertaken in wartime and vice versa. When it comes to recurrent attacks, this is demonstrated in the case of the sonic boom flights perpetrated by military air jets and having an impact upon the local civilian population. Condemned back in the 60s once they took place extensively in Oklahoma against American civilians, they were equally not included as means of warfare in a possible Cuba invasion (see here at page 188). Similarly, in the case of Israel, the outcry raised by the sonic boom attacks against Palestinians in Gaza during warfare, obliging the Israeli army to discontinue with the practice, is met in peacetime with the protests recently issued on the fear and panic air fighters practicing in the skies of Tel Aviv caused to Israeli civilians, prompting the Israeli army to deliver an apology. This symmetry renders possible the civilian harm legality measurement according to the severity of the military actions and not according to other parameters. Ultimately, such symmetry provides an objective rather than subjective criterion to the question of whether incidental civilian harm can acquire an independent legal value.