Introduction
The mental health and psychosocial needs of victims and survivors of armed conflict remain inadequately addressed, despite growing recognition of their significance.Footnote 1 According to the World Health Organization (WHO), rates of mental health conditions more than double in conflict-affected populations.Footnote 2 More than one in five people living in post-conflict settings will develop a mental health condition,Footnote 3 and many more suffer from “inextricably interlinked” psychosocial difficulties.Footnote 4 Marginalized and vulnerable people are at particular risk.Footnote 5 Unmet mental health and psychosocial needs lead to an increase in substance use and suicide, impact cognitive functionality, livelihood and educational opportunities, and negatively influence the physical health and life expectancy of affected people.Footnote 6 They can also have long-term and far‐reaching consequences for entire communities and societies, leading to further violence, inequality and social disruption.Footnote 7 Through the 2019 International Conference of the Red Cross and Red Crescent (International Conference), the international community has “[expressed] deep concern about these unmet mental health and psychosocial needs [of people affected by armed conflict], stressing the urgent demand for increased efforts in prevention, promotion, protection and assistance”.Footnote 8 Despite such calls to action, however, the response remains inadequate to meet the needs of victims of armed conflict.Footnote 9
There is an increasing understanding that these needs extend beyond diagnosed mental health conditions to encompass broader psychological and psychosocial concerns. According to the International Committee of the Red Cross (ICRC), the term “mental health” is used to denote psychological well-being, while “psychosocial” refers to the “interconnection between the individual and their environment, interpersonal relationships, community and/or culture (i.e. their social context)”.Footnote 10 The incidence of both mental health and psychosocial problems increases significantly during armed conflict.Footnote 11 Addressing these needs requires a tailored and holistic approach ranging from mental health interventions to psychosocial support, and operationally includes “a range of social activities designed to foster psychological improvement, such as sharing experiences, fostering social support, awareness-raising and psychoeducation”.Footnote 12 While the ICRC and other organizations aim to provide such support, the needs often far outweigh the response capacity.Footnote 13
This gap invites questions about the role of international law in protecting the mental health and psychosocial needs of victims of armed conflict. Armed conflict is regulated, first and foremost, by international humanitarian law (IHL).Footnote 14 However, the obligations established by IHL in respect of mental health are limited, particularly in post-conflict situations (that is, immediately after a conflict ends).Footnote 15 Under core IHL treaties and customary IHL, States are required to respect and protect the wounded and sick regardless of nationality, treat them humanely and, “to the fullest extent practicable”, provide them with the medical care and attention their condition requires.Footnote 16 This obligation extends to mental health care; Article 8(a) of Additional Protocol I (AP I) defines the “wounded” and “sick” as “persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care”.Footnote 17
Despite these medical care obligations, IHL’s approach to mental health remains limited in two key respects. First, while IHL requires medical treatment for wounded and sick persons with mental disorders or disabilities, it has traditionally treated broader mental health and psychological impacts as inevitable consequences of armed conflict.Footnote 18 The provision of psychosocial support (as opposed to medical assistance or care), for example, is not explicitly mandated in core IHL treaties.Footnote 19 Second, IHL’s scope is generally limited to armed conflict, as opposed to post-conflict situations.Footnote 20 While protected persons in the hands of the enemy continue to receive protection until their final release and repatriation,Footnote 21 this does not address the needs of conflict-affected and post-conflict populations more broadly. In light of these limitations, analysis of the adequacy of the international legal framework should extend beyond the core IHL treaties to other relevant instruments.
To this end, the present article examines the intersection between international human rights law (IHRL) and victim assistance regimes in IHL disarmament treaties in addressing mental health and psychosocial needs in post-conflict situations. Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which sets out “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (“right to health”),Footnote 22 provides an important foundation for the right to mental health. However, its overall normative content remains vague and contested,Footnote 23 and mental health has historically been neglected within the right to health framework;Footnote 24 to the extent that it has been considered, a reductionist biomedical – as opposed to holistic – paradigm has been preferred.Footnote 25 Moreover, because this right is subject to progressive realization,Footnote 26 its implementation in resource-strained post-conflict settings presents particular challenges, making it difficult to distinguish between a State’s unwillingness to fulfil obligations and its inability to do so.Footnote 27 To address these challenges and “ensure the satisfaction of, at the very least, minimum essential levels of each of the rights” established in the ICESCR, the Committee on Economic, Social and Cultural Rights (CESCR) has identified minimum core obligations applicable in all settings.Footnote 28 These minimum core obligations, while subject to varying interpretations,Footnote 29 likely include some level of mental health care;Footnote 30 however, as will be argued, whether they include broader psychosocial support is, at best, unclear, given the focus of the core obligations on “minimum essential levels” of economic, social and cultural (ESC) rights.Footnote 31 Moreover, while minimum core obligations persist in the face of resource challenges,Footnote 32 in practice, post-conflict resource constraints make it challenging to meet even these obligations, highlighting the need for stronger supports for populations in post-conflict situations. These factors reveal both conceptual and implementation weaknesses in existing legal frameworks for mental health protection in post-conflict settings, where needs are especially acute.
Victim assistance regimes found in IHL disarmament treaties such as the Convention on Cluster Munitions (CCM)Footnote 33 and the Treaty on the Prohibition of Nuclear Weapons (TPNW)Footnote 34 provide useful models for comparison, particularizing mental health and social inclusion obligations and setting out international assistance duties. The CCM, for example, requires States Parties to “adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support”.Footnote 35 It also sets out specific measures that States must take to fulfil these obligations, including assessing victims’ needs, developing policies and budgets, and establishing national focal points.Footnote 36 This article considers whether victim assistance regimes offer useful insights for the development and implementation of IHRL obligations in respect of mental health and psychosocial needs post-conflict. It argues that, while the right to health under the ICESCR provides a doctrinal foundation for mental health support, victim assistance models offer particularization and practical mechanisms that could strengthen the international legal response.
The article proceeds in three substantive parts. First, it sets out the right to health under IHRL, considering the content and scope of obligations that relate to mental health and psychosocial needs in post-conflict situations. It focuses, in particular, on Article 12 of the ICESCR given its general application, while also considering key provisions of the Convention on the Rights of Persons with Disabilities (CRPD), the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Second, it explores key practical challenges in applying the right to health in post-conflict situations, particularly in relation to mental health and psychosocial factors. Third, in light of these limitations, it examines the key features of victim assistance regimes that could aid in the interpretation, implementation or development of the right to (mental) health.
The right to (mental) health under international human rights law
This analysis will focus first on the right to health under Article 12 of the ICESCR and how it has been interpreted by the CESCR,Footnote 37 before considering particularized regimes under the CRPD, the CRC and CEDAW. While there is a degree of artificiality to separating the right to health from other ESC rights given that human rights are “interdependent, indivisible and interrelated”,Footnote 38 many of the challenges that apply to the application and implementation of the right to health also hinder the fulfilment of other ESC rights post-conflict.Footnote 39
General obligation under Article 12
This section considers the content of the right to health under ICESCR Article 12 in broad terms, before examining the obligations related to mental health in particular.
Key provisions and concepts
Article 12(1) of the ICESCR provides: “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.”Footnote 40 To achieve the full realization of this right, Article 12(2) requires States Parties to, among other measures, take the necessary steps for the “prevention, treatment and control of epidemic, endemic, occupational and other diseases”Footnote 41 and “the creation of conditions which would assure to all medical service and medical attention in the event of sickness”.Footnote 42 As the CESCR’s General Comment No. 14 notes, the right to health under Article 12 extends beyond the right to health care to include underlying determinants of health, such as safe water and food, adequate housing, good working conditions, and gender equity.Footnote 43 It does not entail a “right to be healthy”,Footnote 44 nor go so far as to require States Parties to guarantee the health of all citizens;Footnote 45 rather, Article 12 has been interpreted as imposing on governments a duty to take specific steps to protect and promote health.Footnote 46
As with other ICESCR obligations, States are required to respect, protect and fulfil the right to health under Article 12.Footnote 47 The obligation to fulfil, which requires States to adopt legislative, administrative, budgetary and other measures towards the full realization of the right,Footnote 48 is of particular relevance in the present context, which is concerned primarily with States’ positive duties to assist people with mental health and psychosocial needs post-conflict. To this end, General Comment No. 14 states that the obligation to fulfil the right to health requires States to take positive measures to enable individuals to enjoy that right.Footnote 49 It includes “actions that create, maintain and restore the health of the population”, such as fostering research, ensuring culturally appropriate training, disseminating appropriate health information and helping people to make informed health choices.Footnote 50 The CESCR has, moreover, drawn attention to gross inequalities in health status globally and has exhorted States parties to cooperate internationally with a view to fully realizing the right to health,Footnote 51 including through seeking assistance.Footnote 52
Mental health under Article 12 of the ICESCR
Article 12 explicitly refers to the right to the highest attainable standard of health,Footnote 53 and requires States to take steps to prevent and treat disease and to create conditions that would assure medical services in the event of sickness.Footnote 54 In accordance with the rules of treaty interpretation, which require treaty terms to be given their ordinary meaning in their context and in light of their object and purpose,Footnote 55 it is apparent that the references to “disease” and “sickness” would include mental disorder or illness. The term “disease” ordinarily includes anxiety disorders, depression, insomnia disorder, bipolar disorder, post-traumatic stress disorder and schizophrenia;Footnote 56 similarly, as the CESCR has noted in respect of Article 12(2)(d), “sickness” may be either physical or mental.Footnote 57 Accordingly, under Article 12(2)(c), States must take steps to prevent, treat and control mental disorders, at least to the extent that they may be classified as diseases. Pursuant to Article 12(2)(d), States must create conditions for assuring medical service and medical attention in the event of sickness.Footnote 58 The CESCR interprets this clause as including
provision of equal and timely access to basic preventive, curative, rehabilitative health services and health education; regular screening programmes; appropriate treatment of prevalent diseases, illnesses, injuries and disabilities, preferably at community level; the provision of essential drugs; and appropriate mental health treatment and care.Footnote 59
According to General Comment No. 14, the obligation to fulfil the right to health also requires States to ensure “the promotion and support of the establishment of institutions providing counselling and mental health services, with due regard to equitable distribution throughout the country”.Footnote 60
Beyond prevention, treatment and medical care, the scope of Article 12’s requirements in relation to mental health is not immediately clear. The concept of mental health is not further developed in the ICESCR, nor has the CESCR defined the term. The CESCR has, however, stated that the right to health “is not confined to the right to health care”, but rather that it
embraces a wide range of socio-economic factors that promote conditions in which people can lead a healthy life, and extends to the underlying determinants of health, such as food and nutrition, housing, access to safe and potable water and adequate sanitation, safe and healthy working conditions, and a healthy environment.Footnote 61
Whether, as a matter of treaty interpretation, the ICESCR can sustain a more comprehensive definition of mental health, which includes, for example, social well-being,Footnote 62 warrants further consideration.
Determining the scope of the obligation regarding mental health depends, to some extent, on one’s interpretative focus. On the one hand, drawing on the ICESCR’s negotiating history,Footnote 63 Michael Krennerich notes that while Article 12 refers to mental health, it does not include “social wellbeing” or “moral wellbeing”,Footnote 64 and he observes that “social conditions are consequently … determinants for health [rather] than their defining component”.Footnote 65 This interpretation is consistent with the decision not to adopt the WHO Constitution’s broader definition of health (“a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”) in the terms of Article 12.Footnote 66 On the other hand, given the human-centric approach of the ICESCR, and its status as a second-generation human rights instrument, a broad interpretation is defensible.Footnote 67 The ICESCR refers to “the ideal of free human beings enjoying freedom from fear and want”,Footnote 68 and protects the right to just working conditions, social security, adequate food, clothing and housing, education, and cultural life.Footnote 69 These expansive provisions are consistent with a broad interpretation of mental health, beyond merely the absence of mental illness. Moreover, the CESCR considers that the notion of health has widened in scope since the adoption of the Covenant, and that more determinants of health, such as resource distribution and gender differences, are being taken into account.Footnote 70 In support of a broad interpretation, the CESCR states that Article 12(2)(c) of the ICESCR (on the prevention, treatment and control of diseases) requires the “promotion of social determinants of good health, such as environmental safety, education, economic development and gender equity”.Footnote 71 Likewise, the CESCR’s General Comment No. 5, which addresses persons with disabilities, specifies that the right to physical and mental health includes a right for such persons to access medical, social and rehabilitation services.Footnote 72 These factors support a broad interpretation of Article 12, which requires the promotion of social determinants of good health. Nevertheless, precisely what it requires for the general population is not readily apparent.
In the context of armed conflict, which gives rise to a wide range of mental health and psychosocial needs, this ambiguity is significant. While ICESCR Article 12 contemplates “mental health treatment and care”, it does not explicitly require the broader responses that operational actors view as necessary for post-conflict recovery, such as psychosocial support, community outreach and sensitization activities to address stigma, and social inclusion measures.Footnote 73 These psychosocial dimensions could potentially fall within Article 12’s scope as underlying determinants of health under General Comment No. 14; in practice, however, biomedical approaches continue to predominate, with public policies neglecting the preconditions of poor mental health such as social exclusion and socio-economic disadvantage.Footnote 74 Such approaches may, as the former Special Rapporteur on the Right to Health notes, reinforce medicalized practices and inadequately address structural issues such as poverty and inequality.Footnote 75 A legal framework that does not expressly require psychosocial support, and is interpreted through a biomedical lens in practice, may overlook the distinctive mental health needs of post-conflict populations.
Article 12 provides a doctrinal foundation for mental health care, even if it is largely silent on psychosocial support. Whether and how these obligations apply in conflict and post-conflict settings, and to what extent resource constraints and progressive realization qualify them, requires separate consideration.
Limitations on the application of Article 12 to armed conflict and post-conflict situations
Although initially conceived as a framework applicable in peacetime,Footnote 76 it is now generally accepted that the ICESCR’s obligations do not automatically cease to apply in armed conflict and adjacent situations.Footnote 77 Provided the State Party has sovereignty or territorial jurisdiction, it will be bound by the provisions of the ICESCR, including Article 12.Footnote 78 This may involve the exercise of extraterritorial jurisdiction, such as in cases of occupation and, potentially, some post-conflict scenarios.Footnote 79
While the ICESCR applies in armed conflict in principle, the existence of conflict has an impact on “the performance of States as required by the Covenant”.Footnote 80 This section considers two provisions under the ICESCR that may affect the application of the Covenant in armed conflict and adjacent situations: Article 2, which is based on resources available to a State, and Article 4, which recognizes that crises, such as armed conflict, may affect enjoyment of ESC rights. In accordance with Article 5 of the ICESCR, any limitations to Covenant rights must be proportional and as limited as possible.Footnote 81
Progressive realization under Article 2
In recognition of the fact that States may be constrained in the fulfilment of economic and social rights by available resources,Footnote 82 almost all the obligations in the ICESCR are subject to “progressive realization”.Footnote 83 Article 2 of the ICESCR provides:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.Footnote 84
According to the influential Limburg Principles, under this provision, States must move as expeditiously as possible towards full realization of rights;Footnote 85 the provision must not be “interpreted as implying for States the right to defer indefinitely efforts to ensure full realization”.Footnote 86 Nonetheless, in accordance with Article 2, the standard that must be met may vary depending on the context.Footnote 87 In post-conflict situations, a variety of factors, including the existence of security measures, the degree of control that the State exercises over a territory, and the availability of resources, may legitimately constrain a State’s ability to protect and fulfil a right.Footnote 88 This can create difficulties in distinguishing between States’ unwillingness to fulfil obligations, on the one hand, and their inability to do so, on the other, particularly when resources are depleted post-conflict.Footnote 89 As Giacca notes, this remains a key issue in the context of armed conflict.Footnote 90
To address the lack of clarity arising from the progressive nature of the obligation, the CESCR has identified a set of minimum core obligations from which no derogation is possible under any circumstances (including armed conflict). According to General Comment No. 3, States Parties have a “minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights” set out in the ICESCR.Footnote 91 This concept, which builds on the notion of “minimum subsistence rights” in the Limburg Principles,Footnote 92 is intended to prevent States from invoking the principle of progressive realization to avoid their obligations,Footnote 93 and it “revolves around the basic level of subsistence necessary for a human being to live in dignity”.Footnote 94 While both “complex and controversial”,Footnote 95 the concept provides some guidance on baseline standards for immediate, not progressive, implementation.Footnote 96
However, there is no universal agreement on what constitutes the minimum core obligations for each right, nor, indeed, on the normative foundations of those obligations.Footnote 97 In the context of the right to health, the CESCR has stated that “a State party in which any significant number of individuals is deprived … of essential primary health care … is, prima facie, failing to discharge its obligations under the Covenant”.Footnote 98 General Comment No. 14 elaborates on the core obligations relating to the right to health, noting that they include, “at least”, the following:
a) To ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups;
b) To ensure access to the minimum essential food which is nutritionally adequate and safe;
c) To ensure access to shelter, housing and sanitation, and an adequate supply of safe and potable water;
d) To provide essential drugs …;
e) To ensure equitable distribution of all health facilities, goods and services;
f) To adopt and implement a national public health strategy and plan of action … addressing the health concerns of the whole population … [with] particular attention to all vulnerable or marginalized groups.Footnote 99
The CESCR identifies additional obligations as being of “comparable priority”, including maternal and child health care, immunization, treatment of endemic diseases, education in relation to health, and training of health personnel.Footnote 100
Whether “essential primary healthcare”, as discussed in General Comment No. 3, includes mental health care – and if so, the standard of such care – is rarely discussed in detail.Footnote 101 Katharine Young, in her nuanced analysis of the differing approaches to the minimum core obligations, considers that the conception in General Comment No. 3 is “suggestive of the more categorical (or more flatly instrumental) formula of ‘basic needs’ amounting to survival and life”.Footnote 102 She notes that the
focus on life and survival is able to transcend the prioritization of civil and political rights over economic and social rights by drawing attention to the moral equivalence of subsistence rights and security rights because of their mutual relation to survival.Footnote 103
The formulation in General Comment No. 14 allows for a more expansive set of minimum core obligations.Footnote 104 Of particular relevance to the question of mental health care is its reference to “the right of access to health facilities, goods and services” on a non-discriminatory basis.Footnote 105 Depending on the interpretation given to “health”, this phrase could conceivably include both mental health and psychosocial support services within its scope; however, like other items on the list, this obligation is “highly indeterminate, both as to the kind of benefits involved and the cost or level at which these benefits must be provided in order to comply with the relevant obligation”.Footnote 106 Accordingly, while the minimum core clearly includes essential medicines and underlying determinants like food, shelter, and water, it is unclear precisely which health services it encompasses.Footnote 107 As Forman et al. note,
[p]rimary health care is not explicitly listed as a core obligation; moreover, much of what we might expect to see in an obligation to provide essential primary health care is explicitly placed outside the core obligations, under obligations of comparable priority.Footnote 108
Whether, and if so to what extent, mental health and psychosocial support (MHPSS) services are included is similarly indeterminate.
Untreated mental health conditions, such as depression, psychosis and acute trauma-related disorders, can be as immediately life-threatening as physical illness or injury, potentially leading to suicide, self-harm, alcohol abuse and/or violence.Footnote 109 On this basis, either formulation of the minimum core should necessarily include mental health treatment that addresses immediate threats to life and basic security. However, it is unclear whether, on either formulation, the minimum core would encompass the broader, often acute, psychosocial dimensions that are central to recovery in post-conflict contexts, such as addressing stigma, social isolation, relationship conflicts, and facilitating community reintegration.Footnote 110 Accordingly, even if mental health treatment necessary for life and security falls within the minimum core of Article 12, it is not apparent whether the concept includes the more comprehensive mental health and psychosocial needs that operational actors like the ICRC identify as essential for post-conflict recovery.
It is important to recognize that by attempting to delineate between minimum core obligations and progressive realization, there is a risk of giving the minimum core concept more determinacy than the concept might indeed sustain.Footnote 111 Numerous scholars have pointed to challenges in articulating and defining minimum core content,Footnote 112 and have proposed alternative approaches to operationalizing the minimum core.Footnote 113 Young, for example, argues that the various operations for which the minimum core concept is invoked, including prescribing content (such as through indicators and benchmarks), ranking obligations and signalling extraterritoriality (including by addressing questions of institutional responsibility, cooperation and interdependence), are obscured by the minimum core concept and may be better served by alternative approaches.Footnote 114 As discussed below, victim assistance regimes provide a useful model for addressing these operational needs.
Limitations under Article 4
The application of Covenant rights in armed conflict may also be limited under Article 4 of the ICESCR, which provides that
the State may subject [Covenant] rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.Footnote 115
In contrast with Article 2, which sets out permissible limitations to ESC rights based on resource issues, Article 4 limits the power of the State to restrict human rights based on other matters.Footnote 116 Under Article 4, any such limitations must be determined by law, compatible with the nature of ESC rights, and for the purposes of “promoting the general welfare in a democratic society”.Footnote 117 General Comment No. 14 emphasizes Article 4 “is primarily intended to protect the rights of individuals rather than to permit the imposition of limitations by States”, and notes that a State Party bears the onus of justifying limitations taken in accordance with Article 4.Footnote 118 While the key intention behind the provision is to ensure that States do not limit ICESCR rights arbitrarily, Article 4 is also permissive in that it allows States to impose limits on the enjoyment of those rights.Footnote 119
There is relatively limited information available about how States interpret Article 4.Footnote 120 Practically speaking, States invoke national security or public emergencies such as armed conflict to limit ESC rights domestically.Footnote 121 While these reasons can legitimately be invoked insofar as they serve the general welfare in a democratic society, State reports suggest that the grounds for such limitations in times of crisis are often not clear.Footnote 122 Instead, Cahill-Ripley notes, in crises such as armed conflict, “States tend to utilise Article 4 as a general ‘emergency’ clause”.Footnote 123 She observes that the data indicates a lack of understanding of limitations permitted under the ICESCR.Footnote 124 This absence of consistent State practice in applying Article 4 hinders the development of a clear understanding of ESC rights such as the right to health in armed conflict.
The application of limitation provisions such as Articles 2 and 4 of the ICESCR may leave broader mental health and psychosocial needs at risk of neglect, particularly in conflict and conflict-adjacent situations, when States are in crisis and resources are constrained. However, it should also be acknowledged that some of these limitations are inherent to the implementation of any legal framework applying in post-conflict settings. Measures to address stigma, social isolation and community reintegration will inevitably face significant challenges in immediate post-conflict settings where resources are strained and the population’s needs are immense. Yet it is nonetheless worthwhile to identify where the existing framework lacks specificity or remains contested, with a view to strengthening it through greater prioritization and particularization of mental health and psychosocial needs and more concrete implementation or cooperation mechanisms.
Particularized regimes
Building on the general framework provided by Article 12, specialized IHRL treaties such as the CRPD, the CRC and CEDAW further particularize the right to mental health for specific populations. This section examines whether the regimes set out in these treaties provide greater clarity regarding mental health obligations, particularly insofar as they apply in conflict scenarios.
Convention on the Rights of Persons with Disabilities
The CRPD aims to ensure the human rights of all persons with disabilities.Footnote 125 Under Article 1(2), this term includes persons who have “long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.Footnote 126 Article 25 is of particular importance, providing that “persons with disabilities have the right to the enjoyment of the highest attainable standard of health without discrimination on the basis of disability”.Footnote 127 This includes the provision of the same standard of health care as provided to other persons, and the provision of health services needed by persons with disabilities specifically because of their disabilities.Footnote 128 Article 26 requires States to organize and strengthen rehabilitation services and programmes, including in the area of health, so as to support participation and inclusion in the community and society.Footnote 129 In this regard, the CRPD goes beyond the provisions of Article 12 of the ICESCR, providing a more socially oriented conception of the right to health.Footnote 130
It is generally accepted that the CRPD applies in situations of armed conflict.Footnote 131 Indeed, under Article 11, States Parties must take “all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict”.Footnote 132 The explicit application of Article 11 to situations of armed conflict makes clear that CRPD obligations persist and require active protective measures in such contexts. However, the ESC rights found in the CRPD are, like Article 12 of the ICESCR, subject to progressive realization under Article 4(2),Footnote 133 which means that the same uncertainty about baseline obligations in resource-constrained settings applies.
Whether the obligations in the CRPD extend to all those with mental health and psychosocial needs post-conflict is not immediately clear. While the CRPD does not define the phrase “persons with a disability” beyond the description in Article 1, the Committee on the Rights of Persons with Disabilities has recommended “a broad impairment-related definition of disability” that includes those with long-term physical, psychosocial, intellectual or sensory impairments.Footnote 134 This would logically extend to those who acquire impairments in the course of armed conflict, but whether it would include those with acute or transient trauma-based mental health and psychosocial needs that are likely to arise during and post-conflict is less clear, with practice from some countries suggesting that it might not.Footnote 135 Moreover, many psychosocial support measures, such as efforts to address stigma, social isolation and community reintegration,Footnote 136 are based on addressing community challenges that are distinct from the impairment of those likely to benefit from them and therefore fit uncomfortably with the CRPD model. An equally pressing practical issue is the fact that impairments are often not reported (due to stigmatization) or not recorded (due to inadequate data collection).Footnote 137 In post-conflict settings, persons with disabilities are often excluded from basic services and are not meaningfully consulted in programme design and implementation.Footnote 138
Convention on the Rights of the Child
The CRC provides particularized obligations in relation to children – that is, generally speaking, persons under the age of 18 years.Footnote 139 Several provisions of the CRC support the mental health of the child. Article 23(1) provides that a “mentally or physically disabled child” should enjoy a full life, with assistance, including health-care services and rehabilitation, where appropriate; in addition, Article 24(1) recognizes “the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health”. However, like the ICESCR and the CRPD, the right to health under Article 24 of the CRC is subject to progressive realization and its attendant limitations.Footnote 140
The CRC contains an important provision applicable specifically to situations of armed conflict and other potentially traumatic experiences. Article 39 provides:
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of … armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.Footnote 141
This provision is especially important given that children who experience armed conflict are at heightened risk of suffering from post-traumatic stress, anxiety and depressive disorders, which may continue into adulthood without available support.Footnote 142 Article 39 is supplemented by Article 7 of the Optional Protocol on the Involvement of Children in Armed Conflict, which imposes similar obligations in respect of child soldiers.Footnote 143
From a mental health perspective, Article 39 imposes measures to promote both psychological recovery (which focuses on recreating conditions favourable to psychological development) and reintegration. Both processes are dependent on the child, their personal experience and the context.Footnote 144 The Committee on the Rights of the Child (the treaty body for the CRC) notes that to facilitate recovery and reintegration under Article 39, “culturally appropriate and gender-sensitive mental health care should be developed and qualified psycho-social counselling provided”.Footnote 145 To this end, Article 39 provides a more comprehensive and adapted approach to facilitate children’s psychological recovery and social reintegration following armed conflict than the general ICESCR framework. Moreover, it provides a useful framework for addressing mental health and psychosocial needs post-conflict,Footnote 146 pointing to the potential for particularization of obligations in respect of the broader post-conflict population.
Convention on the Elimination of all Forms of Discrimination against Women
Part I of CEDAW condemns discrimination against women in all forms, including in the enjoyment or exercise of ESC rights,Footnote 147 and requires States to take all appropriate measures to ensure women’s full development and advancement on a basis of gender equality.Footnote 148 Armed conflict exacerbates the risk of discrimination towards women and girls, including in the form of gender-based violence.Footnote 149 In light of this, the Committee on the Elimination of Discrimination against Women has recommended that States Parties “[a]llocate adequate resources and adopt effective measures to ensure that victims of gender-based violence, in particular sexual violence, have access to comprehensive medical treatment, mental health care and psychosocial support”.Footnote 150 Though limited in scope, this recommendation, like Article 39 of the CRC, demonstrates how ESC rights can be particularized and tailored to the needs of certain groups in conflict-affected societies.
Challenges in applying the right to health in post-conflict situations
The analysis above reveals that while IHRL provides a doctrinal foundation for mental health care (and potentially, though often not explicitly, psychosocial support), particular challenges emerge when applying these obligations in post-conflict situations. Context can affect both the content of ESC obligations and the ability of the State to fulfil those obligations.Footnote 151 This part considers the latter challenge, discussing three key issues that arise in relation to the obligation to care for mental health in conflict and post-conflict situations: a lack of prioritization of the right to health and mental health in particular; genuine resource constraints and a lack of international support; and shortcomings in the implementation of human rights post-conflict.Footnote 152
Deprioritization of health and mental health rights
ESC rights are often not prioritized by affected States and the international community in conflict situations.Footnote 153 To the extent that human rights are considered in post-conflict settings, ESC rights tend to be viewed as subordinate to civil and political rights such as those protecting life, liberty and security.Footnote 154 The rights of marginalized and vulnerable people are particularly neglected in the context of armed conflict.Footnote 155
This lack of prioritization extends to the right to health care in conflict and post-conflict situations.Footnote 156 Not only are attacks on health-care facilities a devastating feature of contemporary armed conflict,Footnote 157 but many health-care systems lack resilience and capacity to function under duress.Footnote 158 Mental health is a particularly underfunded area of health care,Footnote 159 and countries impacted by disaster and conflict, where mental health problems are especially widespread, typically have a lower or non-existent budget allocated to improving mental health.Footnote 160 Indeed, as Weissbecker notes,
[m]ental health remains one of the most under-funded areas of health care, especially in low-resource settings. As a result, it is estimated that 75% of individuals with mental health problems in low income countries have no access to mental health services.Footnote 161
While mental health and psychosocial needs are particularly acute post-conflict, they are often overlooked in favour of more visible emergency priorities.Footnote 162 This lack of prioritization is especially problematic given the fact that humanitarian activities are mostly developed in the early stage of post-conflict situations.Footnote 163
Genuine resource constraints and insufficient international support obligations
While acknowledging that States will sometimes seek to avoid their human rights obligations for self-serving or political reasons,Footnote 164 genuine resource constraints can make even minimum core obligations difficult to implement, especially in times of economic crisis or conflict.Footnote 165 Armed conflict can adversely impact basic infrastructure and economic capacity, two factors that States often rely on to justify non-fulfilment of obligations in reports to the CESCR.Footnote 166 This section considers these factors in turn, focusing on lack of health infrastructure and lack of financing.
Lack of (health) infrastructure
ESC rights “presuppose the capacity of the State to carry out a range of governmental functions”.Footnote 167 However, States emerging from conflict often face a lack of resources due to the decimation of their economy and society,Footnote 168 with damage to institutional infrastructure being as significant as damage to physical infrastructure.Footnote 169 In reports to the CESCR, several States, including Colombia,Footnote 170 Somalia,Footnote 171 the Democratic Republic of the Congo,Footnote 172 Armenia,Footnote 173 AzerbaijanFootnote 174 and Nepal,Footnote 175 have referenced the destructive social, economic and political effects of armed conflict in an attempt to justify non-compliance with obligations under the ICESCR.Footnote 176 Armed conflict poses numerous hurdles for States seeking to meet obligations in relation to victims’ needs, particularly where conflict is protracted.Footnote 177
Additionally, conflict frequently results in destruction of physical and institutional health-care infrastructure, including hospitals, clinics and medical supply chains.Footnote 178 Health-care personnel are also frequently killed, displaced or leave clinical practice during conflict, whether through direct attacks, insecurity or for economic reasons.Footnote 179 This loss of both physical infrastructure and human and economic resources further compromises States’ capacity to respond effectively to their populations’ health-care needs.Footnote 180 As Giacca notes,
even the implementation of the strict minimum core obligations regarding … primary health care appears to be far from affordable for many poor countries, to say nothing of those involved in armed conflict in places such as Afghanistan or the Democratic Republic of the Congo.Footnote 181
This points to a need for external funding to facilitate even minimal health care, as explored below.Footnote 182
Lack of funding
The international community has agreed that the gross inequality in health status globally is unacceptable and of common concern to all countries.Footnote 183 In practice, according to the United Nations Human Rights Council (UNHRC), one of the main obstacles to ensuring compliance with human rights in post-conflict or transitional situations is “the allocation of inadequate funds”.Footnote 184 While States are urged to allocate funding for “emergency response, relief and reconstruction”, as well as development, within their own territories,Footnote 185 in reality, States will often be dependent on international assistance to implement human rights obligations.Footnote 186 The UN has consistently emphasized the importance of international cooperation and assistance to strengthen health systems and services in conflict-affected areas.Footnote 187
International law reflects, in general terms, the importance of cooperation for meeting ESC rights such as the right to health.Footnote 188 Building on Articles 55 and 56 of the UN Charter, Article 2(1) of the ICESCR obliges States Parties “to take steps, individually and through international assistance and co-operation, especially economic and technical”, with a view to achieving the full realization of Covenant rights.Footnote 189 The availability of external assistance is a relevant factor in considering whether a State is genuinely unable to meet its obligations under the ICESCR.Footnote 190 The CESCR has stated that “in determining whether a State party is truly unable to fulfil its obligations under human rights law, it is necessary to consider both the resources existing within a State and those available from the international community”.Footnote 191
However, the obligation to seek international assistance should be distinguished from a legally binding obligation on third States to provide assistance.Footnote 192 While ICESCR Article 2 contemplates the provision of international assistance in general terms,Footnote 193 it does not explicitly establish a stand-alone legal obligation to assist in relation to the right to health. This can be contrasted with the obligation under ICESCR Article 11(2), which provides that States “shall take, individually and through international co-operation”, measures needed to ensure that food supplies are distributed equitably in relation to need.Footnote 194 During the negotiations of the ICESCR, there appears to have been a divergence in understanding between those States in need of assistance and those in a position to provide it; the former considered there to be a legally binding obligation to provide international assistance, while the latter doubted the duty, with some deeming it “merely a moral obligation”.Footnote 195 More generally, States negotiating the ICESCR did not support the inclusion of international assistance and cooperation as a mandatory obligation.Footnote 196 It would therefore be a stretch to read into ICESCR Article 2 a legally enforceable obligation to assist in specific situations.Footnote 197
The CESCR attempts to strengthen or clarify this framework in General Comment No. 14, asserting that States have a joint and individual responsibility to cooperate in providing humanitarian assistance in emergency situations.Footnote 198 A State should “contribute to this task to the maximum of its capacities”, giving priority to the most vulnerable or marginalized groups.Footnote 199 The Committee emphasizes that it is “particularly incumbent on States parties and other actors in a position to assist” to provide assistance and cooperation aimed at enabling developing countries to meet their minimum core and other obligations.Footnote 200 Despite this pronouncement, there remains ambiguity about whether – and if so, when – there is a duty on the international community to provide assistance in conflict-related situations.Footnote 201 As a non-binding interpretive body, it is problematic to assert that the CESCR can unilaterally create obligations that States declined to accept during negotiations.Footnote 202 This points to the need for further development of the international assistance and cooperation obligations de lege ferenda. To this end, soft-law documents such as the Maastricht Principles, which require States to “take action, separately, and jointly through international cooperation, to respect the ESC rights of persons within their territories and extraterritorially”,Footnote 203 may contribute to emerging normative standards.
Weak implementation of human rights post-conflict
According to the UNHRC, there are several systemic shortcomings in the implementation and delivery of human rights post-conflict.Footnote 204 This section examines four interconnected implementation challenges: the lack of clarity in legal obligations; the absence of operational frameworks for implementing obligations; the exclusion of affected and vulnerable populations from participation; and weaknesses in monitoring and accountability mechanisms.
Lack of clarity in legal obligations
Shortcomings in domestic implementation of the right to health may be partly attributable to a lack of clarity about what IHRL demands. When it comes to the minimum core obligations, the CESCR has suggested that States set their own national benchmarks rather than following a universal one;Footnote 205 however, as Fukuda-Parr et al. note, precisely how the minimum core and national benchmarks should be set remains an open question.Footnote 206 Miller points to the dispersed nature of the national laws relating to mental health, noting that they are scattered and lack specificity.Footnote 207 She observes that “trying to gather mental health laws and socio-economic rights which are spread throughout different laws can make it problematic for enforcement, and protections can become piecemeal and incomplete”.Footnote 208 Perhaps as a result, in most States, funding arrangements for mental health services are not set out in legislation, but rather are seen as the responsibility of the executive and policy-makers.Footnote 209 The lack of consolidation
also offers States a wide margin of appreciation in implementing standards and incorporating the provisions into domestic legislation. … As a result, there remains a gap in hard law and its application, and … a gap in mental health protections.Footnote 210
This is particularly important given the competing demands on limited resources in post-conflict settings. In such settings, the absence of clear legislative obligations is likely to mean that mental health is overlooked; clearer obligations addressing the full range of mental health and psychosocial needs, and more specific guidance on their implementation, could help ensure that mental health is not sidelined in favour of executive discretion and competing priorities.Footnote 211 While greater specificity carries its own challenges, including questions of how obligations should be calibrated across States with differing capacities and priorities, the current absence of clear legislative obligations likely poses a more immediate risk for mental health care in resource-constrained post-conflict settings.
Inadequate operational frameworks
While the ICESCR provides general duties of implementation,Footnote 212 it does not include specific mechanisms for translating them into concrete action. The CESCR has sought to develop these duties, setting out several steps for implementation at the national level. General Comment No. 14 identifies the adoption of a national public health strategy and plan of action for addressing population health concerns as a minimum core obligation.Footnote 213 It also recommends that States formulate policies to implement national strategies, and that they consider adopting a framework law to operationalize their right to health strategy which includes targets, time frames and benchmarks.Footnote 214 National health strategies should identify right to health indicators and benchmarks in order to monitor the State’s obligations under Article 12.Footnote 215
While General Comment No. 14 recommends several broad implementation measures, gaps remain. It does not, for example, specify operational steps such as conducting needs assessments, implementing a budget or designating a national focal point. This lack of specificity allows a significant degree of variation between States – for example, scholars have identified inconsistency in needs assessment processes across States and institutions.Footnote 216 The profound impact that conflict has on individuals, communities and infrastructure leads to a particularly complex array of needs, demanding an integrated and multifaceted understanding.Footnote 217 As the ICRC notes, “hardship forces people to choose between such highly intertwined priorities as safety, food, health care, rent, school fees and other essential needs”.Footnote 218 As the primary entities responsible for meeting their populations’ needs,Footnote 219 it is essential that States are able to assess needs in a multifaceted and systematic way in order to meet those needs and ensure adherence to human rights standards.Footnote 220 This is particularly important for addressing mental health and psychosocial needs, which, the ICRC’s operational experience demonstrates, are often “invisible and unspoken problems” that require specialized assessment approaches to detect, as victims are reluctant to reveal psychological distress.Footnote 221
Given that conflict exacerbates existing inequalities and vulnerabilities,Footnote 222 particular attention should be paid to the needs of groups such as women, children and adolescents.Footnote 223 WHO has stated that “[t]he severe consequences for women’s, children’s and adolescents’ health and well-being wrought by crises such as conflict, contagion and climate change should be anticipated through gender- and age-sensitive risk assessments and contingency planning”.Footnote 224 To this end, the CESCR has declared that “[p]riority in the provision of international medical aid, distribution and management of resources, such as safe and potable water, food and medical supplies, and financial aid should be given to the most vulnerable or marginalized groups of the population”.Footnote 225 Operational frameworks that include systematic needs assessments and designated focal points can help to ensure that MHPSS reaches the most vulnerable populations.Footnote 226
Early failure to include responses based on human rights such as the right to health can result in increased vulnerability, decreased State legitimacy, and problems in implementing such obligations down the line.Footnote 227 This set of challenges is compounded by the complex nature of post-conflict reconstruction itself; as Anderlini and El-Bushra observe, post-conflict reconstruction involves balancing immediate humanitarian needs with longer-term development goals.Footnote 228 These dual demands make systematic needs assessment all the more critical to ensure that appropriate attention is given to both short- and long-term issues.Footnote 229 Without such systematic approaches, mental health and psychosocial needs – which require both immediate intervention and long-term support – risk being overlooked in favour of more visible emergency priorities.
Lack of inclusive victim participation and consultation
The CESCR has affirmed that the “right of individuals and groups to participate in decision-making processes, which may affect their development, must be an integral component” of any policy or strategy designed to meet obligations under Article 12.Footnote 230 This statement reflects extensive scholarship and treaty body guidance setting out the importance of meaningful participation and consultation of those affected in conflict resolution, peace and development processes.Footnote 231 However, in practice, there is a noted “[l]ack of inclusiveness of and accessibility to at-risk groups, including women, children, older persons, persons with disabilities and indigenous peoples, as well as [a] lack of involvement and partnership with private actors”.Footnote 232 This has led the UN Secretary-General to call for increased participation of groups such as women and people with disabilities in humanitarian decision-making.Footnote 233
Ensuring consultation with victims is particularly important in the context of mental health,Footnote 234 with research showing that inclusion of local communities and local health-care personnel plays a significant role in ensuring the effectiveness of mental health interventions.Footnote 235 In practice, however, reconstruction discussions often “begin from economic needs assessment and templates derived from international best practices, rather than through engagement with the affected individuals or with the actual realities on the ground especially in the aftermath of civil conflict”.Footnote 236 This can result in programmes that are – or are perceived to be – disconnected from local realities or interests, and lack local ownership and trust.Footnote 237 Moreover, policies described as reconstruction can in fact be “a vehicle for sustaining and perpetuating structures of domination”.Footnote 238 These participation gaps both result from and contribute to broader failures in post-conflict human rights implementation, and point to the need, identified in General Comment No. 14, for effective inclusion obligations.Footnote 239
Monitoring and oversight gaps
The right to health is subject to the same general reporting and monitoring obligations as other ICESCR rights. Under ICESCR Article 16, States must submit periodic (five-yearly) reports to the UN Secretary-General on the measures adopted and progress made in fulfilling their obligations under the Covenant.Footnote 240 This report may indicate factors and difficulties affecting implementation.Footnote 241 In addition, while the ICESCR does not itself contain a complaints mechanism, the 2008 Optional Protocol to the ICESCR creates individual and inter-State complaints mechanisms.Footnote 242 The CESCR is responsible for carrying out the monitoring functions under the ICESCR and Optional Protocol, including examining State reports, receiving and considering individual and inter-State complaints, and undertaking inquiries on grave or systematic violations.Footnote 243 The particularized regimes discussed above, namely those of the CRPD, the CRC and CEDAW, each have their own monitoring and reporting mechanisms.Footnote 244
However, these frameworks have certain limitations.Footnote 245 First, the ICESCR’s general and intermittent reporting obligations mean that mental health is necessarily addressed in broad terms. Periodic reports from States currently or recently afflicted by conflict give little, if any, attention specifically to mental health in post-conflict contexts;Footnote 246 for example, Somalia’s initial report to the CESCR, covering the period 1990–2023, acknowledges that “[m]ental healthcare services are almost non-existent, despite the widespread prevalence of trauma-related disorders resulting from decades of violence and displacement”,Footnote 247 but there is no further engagement as to how these shortcomings might be addressed. Second, individual and inter-State complaints mechanisms created by the 2008 Optional Protocol to the ICESCR have only limited reach, with just thirty-one ratifications.Footnote 248 An advanced search of the Office of the UN High Commissioner for Human Rights’ JURIS database conducted by the author failed to disclose any admissible complaints to the CESCR dealing with the right to mental health post-conflict under Article 12.Footnote 249 Moreover, most complaints to the CESCR address specific, isolated cases, rather than systemic issues, which may obfuscate a broader understanding of the issue. Finally, mental health post-conflict is featured in just 0.1% of treaty bodies’ recommendations,Footnote 250 highlighting its relative invisibility.
In light of the limitations of existing measures, the UNHRC has urged the creation of accountability mechanisms for enforcing rights as a means to help “strengthen political commitment and justifications for resource allocation, and improve incentives for the provision of social services without discrimination”.Footnote 251 It has additionally noted that accountability processes are a means of identifying what works and what does not, enabling the revision of programmes and processes.Footnote 252 These broader effects render accountability and monitoring mechanisms particularly important, both for the enforcement of individual human rights and for achieving broader goals. Accountability for the right to health is a highly topical issue, with the former Special Rapporteur on the issue arguing that the current accountability framework is “seriously deficient and not fit for purpose”.Footnote 253
The implementation gaps outlined herein, combined with broader challenges applying the right to health in post-conflict settings, prompt consideration of how the system could be bolstered. To this end, the following part of the present article explores whether victim assistance regimes might offer insights for the implementation or progressive development of mental health obligations under IHRL.
Victim assistance regimes: A complementary framework
As the UNHRC has observed, “[t]o increase the effectiveness and scope of human rights protection in post-disaster and post-conflict situations, a holistic and complementary approach among the different branches of international law is necessary”.Footnote 254 Victim assistance models help bridge the gap between conflict and peace by combining IHL’s protective approach to victims of armed conflict with IHRL’s framework for long-term rights realization, reflecting the conceptual frameworks of both branches of international law. Rather than creating individually enforceable rights for victims of violations, victim assistance models impose primary obligations on States PartiesFootnote 255 and accordingly operate as a complement to, rather than a substitute for, the rights-based framework of the ICESCR. These models offer potential insights for the implementation and development of the right to health, and reflect broader global trends urging States to promote MHPSS in conflict and related settings.Footnote 256 The following sections provide an overview of victim assistance models as found in the CCM and the TPNW,Footnote 257 before identifying some potential insights that these models offer, as well as their limitations.
Overview of victim assistance models
The CCM and TPNW build on a line of “humanitarian disarmament” treaties, such as the Anti-Personnel Mine Ban Convention, which introduced victim assistance obligations to the traditionally security-oriented field of disarmament law.Footnote 258 While the CCM and the TPNW each impose similar primary obligations on States Parties,Footnote 259 the victim assistance regime under the CCM is slightly more developed and will be the focus of this section. Article 5(1) of the CCM provides:
Each State Party with respect to cluster munition victims in areas under its jurisdiction or control shall … adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion.Footnote 260
Article 5(2) goes on to specify measures that States must take to fulfil these victim assistance obligations. These include assessing the needs of cluster munitions victims, developing and implementing national laws, policies and budgets, consulting closely with victims in the development of programmes, and establishing a national focal point.Footnote 261
The scope of these obligations depends in part on who qualifies as a victim. The CCM adopts an expansive definition of “cluster munition victims” as meaning
all persons who have been killed or suffered physical or psychological injury, economic loss, social marginalisation or substantial impairment of the realisation of their rights caused by the use of cluster munitions. They include those persons directly impacted by cluster munitions as well as their affected families and communities.Footnote 262
This broad definition is consistent with the obligation in CCM Article 5(1) to provide for economic and social inclusion, and reflects a recognition of the importance of community-based approaches in post-conflict settings.Footnote 263
Hand in hand with the victim assistance obligation, both the CCM and the TPNW establish an international duty for States in a position to do so to provide assistance in implementing the victim assistance obligation.Footnote 264 This may be provided through the UN, the Red Cross and/or other international or non-State actors.Footnote 265 These international assistance obligations, while slightly more specific than the open-ended assistance obligation in Article 2 of the ICESCR, remain obligations of conduct and relatively indeterminate due to the subjective nature of the obligation (“in a position to do so”).Footnote 266 Notably, the TPNW goes further than the CCM, creating an obligation for a State Party that “has used or tested nuclear weapons or any other nuclear explosive devices” to provide assistance to affected States Parties, including for the purposes of victim assistance.Footnote 267
States are required to undertake annual reporting to the UN Secretary-General on the implementation status of their victim assistance obligations.Footnote 268 The CCM also provides a framework for periodic meetings and five-yearly Review Conferences, convened by the UN Secretary-General.Footnote 269 The Review Conferences held to date have provided a platform for the adoption of CCM Action Plans, which are designed to help “gather momentum” and to “guide and help States Parties and other relevant actors in the practical implementation of the Convention”.Footnote 270 To date, two action plans have been adopted by the First and Second Review Conferences respectively: the Dubrovnik Action Plan (2015) and the Lausanne Action Plan (2020).Footnote 271 The Third Review Conference will take place in the Lao PDR in 2026,Footnote 272 at which the Lausanne Action Plan will be reviewed and a new five-year Action Plan adopted.Footnote 273
Insights from victim assistance models
This section sets out three key areas in which insights from victim assistance models could strengthen responses to mental health and psychosocial needs following armed conflict: the prioritization of these needs; a practical implementation framework; and international assistance obligations.
Prioritization of victims’ mental health and psychosocial needs
Victim assistance models offer greater specificity in relation to MHPSS than the ICESCR framework. By explicitly including psychological support and social and economic inclusion in the substantive provision, Article 5(1) of the CCM ensures that these measures receive appropriate priority. Victim assistance provisions under the CCM and TPNW specifically identify victims of the eponymous weapons as particularly vulnerable, and mandate age- and gender-sensitive assistance without discrimination.Footnote 274 By clearly articulating these key obligations, these provisions actively prioritize victims’ psychological and social inclusion needs. Even if psychosocial dimensions could be read into Article 12 of the ICESCR as underlying determinants of health, they do not receive the explicit prioritization and operational content that victim assistance models provide. In this regard, victim assistance models reflect a conception of good mental health which goes beyond the medical model that has predominated under IHRL,Footnote 275 aligning more closely with the MHPSS measures recommended by expertsFootnote 276 and undertaken by operational actors. The ICRC Guidelines on Mental Health and Psychosocial Support, for example, outline a broad range of activities that the ICRC undertakes “to protect and promote psychosocial well-being, prevent mental health disorders and treat such disorders when they occur”,Footnote 277 including psychosocial support groups, community sensitization activities and individual supports.Footnote 278 UN General Assembly Resolution 77/300 on “Mental Health and Psychosocial Support” takes a similarly broad approach.Footnote 279
This breadth and particularization help to ensure that the specific mental health and psychosocial needs of victims of armed conflict receive priority attention rather than being overlooked in favour of more visible emergency priorities. This adds particularity beyond the relative generality (as to both the objects and content of the right to health) of General Comment No. 14. Particularizing these obligations helps to ensure that victims are not sidelined early in the transition phase when their needs are most acute and longer-term priorities are being established.Footnote 280
The selective scope of victim assistance models, focusing primarily on medical care, rehabilitation and psychological support rather than the full range of human rights, might raise questions about prioritization among different rights, and hierarchies among competing needs, in resource-constrained settings. Such questions reflect criticisms of the minimum core concept’s tendency to rank various rights while overlooking other important considerations such as macroeconomic growth or defence policies.Footnote 281 While acknowledging their selective scope, it is important to note that victim assistance models are complementary to, and do not purport to displace, adjacent human rights obligations, including under the ICESCR.Footnote 282 Moreover, a focus on psychological support and social inclusion seeks to rectify a historically neglected area of human need.Footnote 283 Enhancing mental health and psychosocial well-being is of increasing priority,Footnote 284 and the need is particularly acute in fragile post-conflict settings. Victim assistance models help to bring the often invisible issue of mental health to the fore, and while such models do not address all the issues relevant to mental health support in or after armed conflict,Footnote 285 they do provide a review mechanism through which such issues might be addressed.
Practical implementation framework
As demonstrated above, a key challenge in post-conflict mental health support is the gap between broad IHRL obligations and practical implementation measures.Footnote 286 While the ICESCR and General Comment No. 14 provide a general framework for implementation, the CCM provides additional specificity in important respects. This might be drawn on to enhance the international legal response to post-conflict mental health and psychosocial needs.
First, Article 5(2) of the CCM requires States to assess the needs of cluster munition victims.Footnote 287 This builds on the obligation in Article 5(1) to “make every effort to collect reliable relevant data with respect to cluster munition victims”,Footnote 288 which must be done without discrimination against or among such victims (or between such victims and those harmed by other causes).Footnote 289 Under the Dubrovnik Action Plan, this requires
[c]ollecting all necessary data, on an ongoing basis, disaggregated by sex and age, assessing the needs and priorities of cluster munition victims, establishing mechanisms to refer victims to existing services, and identifying any methodological gaps in the collection of data. Such data and needs assessment should be made available to all relevant stakeholders and be integrated into or contribute to national injury surveillance and other relevant data collection systems for use in programme planning.Footnote 290
Some measures for implementing these obligations – such as adding relevant questions to national censuses and sharing data with relevant authorities – are relatively inexpensive and have been used to good effect within the CCM framework.Footnote 291 Applied to post-conflict mental health, this framework bolsters the general exhortation in General Comment No. 14 to improve “epidemiological surveillance and data collection on a disaggregated basis”.Footnote 292
Second, Article 5(2) requires States to develop and implement national laws and policies, as well as a national plan and budget, “with a view to incorporating them within the existing national disability, development and human rights frameworks and mechanisms”.Footnote 293 This builds on General Comment No. 14, which requires States to adopt a national strategy and formulate corresponding policies, and exhorts States to “consider adopting a framework law”.Footnote 294 Incorporating victim assistance obligations into existing disability, development and human rights frameworks facilitates a sustainable and integrated approach.Footnote 295 Good practice under the CCM framework includes policies providing humanitarian and development agencies with a mandate to ensure the inclusion of survivors and indirect victims in aid to affected States.Footnote 296
Third, under CCM Article 5(2)(d), States must also take steps to mobilize national resources;Footnote 297 similarly to the above, this builds on the remark in General Comment No. 14 that States must adopt budgetary measures towards the realization of the right to health.Footnote 298 Imposing a requirement to mobilize resources goes beyond a budgetary obligation and could militate against attempts to avoid obligations based on progressive realization. This requirement reflects recommendations of the UNHRC regarding funding.Footnote 299
Fourth, Article 5(2) of the CCM requires States to consult closely with and “actively involve” cluster munition victims in fulfilling their victim assistance obligations. This involves ensuring victims’ “full, equal and meaningful participation in relevant Convention-related matters”.Footnote 300 To this end, national legislation or policy should require regular consultation with disability and survivor organizations to ensure that direct and indirect victims and other vulnerable groups are included in initiatives.Footnote 301 This obligation reflects the CESCR’s recommendation that the formulation and implementation of national health strategies and plans should respect the right of affected groups to participate in decision-making processes which may affect their development.Footnote 302 Good practice under the CCM framework includes establishing measures to include victim survivors and indirect victims in projects benefiting affected States, and taking practical steps to eliminate barriers that prevent survivors and indirect victims from accessing services.Footnote 303
Fifth, States must designate a focal point within the government for coordinating victim assistance matters.Footnote 304 The provision of MHPSS is likely to involve several government ministries, including those of health, social services and education, alongside other agencies.Footnote 305 The focal point obligation ensures coherence and representation across a range of government departments, and creates a contact point for victims’ organizations and international bodies.Footnote 306 There has been relatively strong adherence to this obligation: in 2023, twelve of the fourteen States Parties with cluster munition victims had a victim assistance focal point.Footnote 307 Good practice recommends that the victim assistance focal point has a seat on the disability council and is represented on a national development committee which involves all key ministries.Footnote 308
Finally, there appears to have been a reluctance among States in recent years to adopt international measures that confer individual rights enforceable directly against States.Footnote 309 The adoption of treaties such as the CCM and the TPNW suggests, however, that States have been willing to commit to reasonably extensive obligations to assist victims, along with transparency measures such as annual reporting to the UN Secretary-General on the implementation status of their victim assistance obligations.Footnote 310 Whereas Article 16 of the ICESCR requires periodic reports to the UN Secretary-General, the CCM requires annual reports and Review Conferences every five years.Footnote 311 States Parties have recognized that transparency reporting promotes trust and confidence between States, helps to monitor progress in implementing treaty obligations, facilitates international cooperation and assistance, and can foster understanding of assistance needs;Footnote 312 it also provides parties with a clear view of relevant developments, enables informed decision-making, demonstrates the practical impact of the CCM, and enables identification and addressing of implementation challenges.Footnote 313 Recent reports from affected States Parties have demonstrated relatively high levels of implementation of victim assistance obligations, including by collecting data, establishing national policies and legal frameworks, and creating a national focal point.Footnote 314 Eight out of twelve affected States reported well-functioning rehabilitation, psychological and psychosocial services.Footnote 315 Despite the benefits of transparency reporting, however, some States face challenges in meeting their obligations, including lack of awareness, lack of capacity and resources, lack of coordination and lack of political support.Footnote 316
International cooperation and assistance obligations
The victim assistance regimes in the CCM and TPNW complement international cooperation and assistance obligations, including Articles 55 and 56 of the UN Charter. Recognizing that post-conflict States may have limited resources, Article 6(1) of the CCM provides that “[i]n fulfilling its obligations under this Convention each State Party has the right to seek and receive assistance”.Footnote 317 Article 6(7) of the CCM proceeds to impose on States Parties “in a position to do so” an obligation to provide assistance as set out in Article 5.Footnote 318 This language reflects sovereignty-related concerns, with efforts during negotiations to impose stronger obligations proving unsuccessful.Footnote 319 By contrast, the TPNW goes a step further, explicitly requiring that a State Party which has used or tested nuclear weapons has a duty to provide “adequate assistance to affected States Parties” for victim assistance purposes.Footnote 320 This inclusion was seen by some as rectifying a shortcoming of the CCM.Footnote 321 International assistance may be provided on a bilateral basis or through alternative channels, including the UN system, international, regional or national organizations, the components of the International Red Cross and Red Crescent Movement, and non-governmental organizations.Footnote 322 This allows for a coordinated partnership approach, which is consistent with reconstruction best practice.Footnote 323
Practically speaking, the CCM international cooperation and assistance model appears to have had mixed success in meeting the needs of cluster munitions victims. Like duties under the ICESCR, victim assistance obligations are ultimately subject to resource availability. While progress has been made in respect of medical care and socio-economic inclusion in many countries, “structural constraints, limited resources, and weak coordination continue to hinder implementation of the Lausanne Action Plan’s victim assistance commitments”.Footnote 324 In recent years in particular, declines in funding for the community-based work of local organizations has hampered access to rehabilitation and economic activities under the CCM.Footnote 325 Accordingly, victim assistance under the CCM remains “uneven and under-resourced” across affected States Parties.Footnote 326 Reports at the 2025 Meeting of States Parties to the CCM indicated that six of the nine affected States which requested international assistance had received such support.Footnote 327
While not a panacea, the content of and practice under victim assistance models nonetheless offer useful insights for addressing the resource constraints that most acutely hinder post-conflict mental health responses. Stronger cooperation and assistance obligations could help address a key challenge in implementing ESC rights post-conflict: the fact that “no distinction is made between violations of ESC rights and the lack of capacity to observe them”.Footnote 328 As Giacca notes, ESC rights are necessarily dependent to some degree upon a country’s level of development given progressive realization.Footnote 329 He suggests, however, that notwithstanding their detrimental socio-economic impacts, armed conflict and unrest do not preclude States from sustaining or increasing requests for international cooperation and assistance.Footnote 330
Two related questions arise de lege ferenda: when should the obligation to assist be triggered, and on whom does it fall? Giacca’s analysis points to the fact that it is not always clear whether States are genuinely unable to fulfil obligations due to lack of resources or are violating them for other reasons. One way to help overcome this lack of clarity might be to allocate and prioritize assistance based on mandated post-conflict needs assessments and national budgets. The principle of impartiality, which mandates that assistance be allocated based on need alone, offers some normative foundation for such an approach.Footnote 331 While this approach might help to clarify the first question, however, it does not address the second question of which States should provide the assistance. To this end, a model based loosely on the TPNW – which requires States that have used or tested nuclear weapons to provide assistance – provides an interesting, though perhaps politically unpopular, option.
Operationalizing victim assistance
As Young argues, rather than seeking to fix the content of economic and social rights through a minimum core, a more productive approach may be to develop indicators, benchmarks and institutional mechanisms that give rights operational meaning in specific contexts.Footnote 332 The victim assistance frameworks examined above suggest several such mechanisms that could strengthen the international legal and policy response to mental health and psychosocial needs post-conflict. These include a dedicated post-conflict needs assessment obligation, integration of MHPSS obligations into existing national frameworks, creation of a designated focal point, victim consultation requirements, and a more robust international assistance trigger, potentially linked to demonstrated need. These need not await new treaty development and could be advanced, in the first instance, through CESCR guidance or soft-law instruments.Footnote 333
Victim assistance regimes are primarily duty-based rather than individual rights-based.Footnote 334 Unlike the ICESCR framework,Footnote 335 they do not confer individually enforceable rights, nor do they establish complaints mechanisms through which victims can seek redress directly against a State. This feature may reflect political realities; States have proven more willing to commit to assistance obligations than to create new, individually enforceable entitlements.Footnote 336 It nonetheless raises a genuine question about whether drawing on victim assistance models risks prioritizing “assistance” over accountability, potentially weakening the rights-based foundation that IHRL provides.Footnote 337 However, the argument advanced in this article is not that victim assistance frameworks should displace IHRL obligations; rather, they should complement them. Victim assistance models offer a detailed application of the obligation to fulfil the right to (mental) health in the specific context of post-conflict populations, giving specific operational content to obligations that, under the ICESCR, remain relatively general. The individually enforceable rights, complaints mechanisms and accountability framework remain those of the ICESCR and associated instruments. What victim assistance models supply are operational mechanisms to help give those rights practical effect; they also bring to the fore aspects of the right to health that tend not to be prioritized (namely mental health and psychosocial needs),Footnote 338 specifically in respect of an under-serviced population. As Françoise Hampson and Ibrahim Salama observe, “[t]wo mutually supportive sets of norms can only enhance the protection of human rights in all circumstances”.Footnote 339 The CCM and TPNW provide precedents for how victim assistance regimes can operate alongside IHRL in a mutually reinforcing manner: IHRL supplies the rights-based foundation and accountability mechanisms that victim assistance regimes lack, while victim assistance regimes supply the operational specificity and post-conflict adaptation needed to bolster the ICESCR framework. An expansive reading of the obligation to fulfil the right to health under the ICESCR would accommodate many of these features; victim assistance models make them explicit and provide working models for their implementation.Footnote 340
That being said, such measures are unlikely to provide a silver bullet for post-conflict harm. Victim assistance models suffer from the limitations endemic across international law, such as resource constraints and considerations of State sovereignty precluding international assistance. However, the insights and specific measures that victim assistance models offer could nonetheless help to prioritize and operationalize MHPSS for victims of armed conflict.
Conclusion
Despite being both urgent and important, mental health and psychosocial needs are often overlooked in post-conflict situations.Footnote 341 While Article 12 of the ICESCR provides a sound doctrinal foundation for the right to health, its impact is limited in the context of mental health post-conflict. It lacks specificity on the scope of mental health as a minimum core obligation, and may not extend to the broader psychosocial needs that are endemic to armed conflict. This risks the deprioritization of mental health and psychosocial needs in favour of more visible demands. In addition to conceptual gaps, practical challenges arise due to resource constraints (genuine or asserted), weak international assistance obligations and inadequate implementation. The conceptual gaps in the legal framework, combined with the practical challenges involved, might contribute to the unmet mental health and psychosocial needs of victims of armed conflict. This invites consideration of how the existing system might be strengthened or improved.
The UNHRC emphasizes the importance of a complementary and holistic approach between the different branches of international law in addressing the needs of victims in post-conflict settings.Footnote 342 To this end, victim assistance regimes may offer insights into particularizing and prioritizing MHPSS. Three features are particularly instructive. First, victim assistance models in humanitarian disarmament treaties explicitly include social and economic inclusion alongside psychological support as a primary obligation. Second, they set out concrete implementation mechanisms for embedding the obligation nationally, including needs assessment frameworks, national focal points, integration within existing frameworks and victim consultation requirements. Third, victim assistance models establish somewhat clearer international assistance obligations, including, in the case of the TPNW, a responsibility on user States to assist. In this regard, victim assistance regimes might be understood as adding specificity to the right to health obligations under the ICESCR. These models are context-specific; accordingly, they are not framed in the language of progressive realization as they provide frameworks designed to apply post-conflict, which limits the scope for resource-based arguments to defer implementation. Of course, it must be acknowledged that this in itself does not overcome the existence of resource limitations, and that it highlights the need for stronger international assistance obligations.
Victim assistance regimes, while imperfect, provide valuable insights for addressing mental health and psychosocial needs post-conflict, whether future developments take the form of new programmes, policies, soft-law instruments or treaties. These regimes’ particularized obligations, implementation measures, and international assistance and cooperation frameworks offer practical responses to the challenges of meeting mental health and psychosocial needs in resource-constrained post-conflict environments. Such measures could be advanced through CESCR guidance, soft-law instruments or the progressive development of existing frameworks, building on the model that victim assistance regimes have already established for victims of specific weapons. As the international community grapples with high levels of conflict and its ensuing harms, ensuring adequate mental health support for those affected is not just a humanitarian imperative, but is also essential for sustainable peace and development.
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