Hostname: page-component-76d6cb85b7-rxvq6 Total loading time: 0 Render date: 2026-07-14T10:11:02.478Z Has data issue: false hasContentIssue false
  • English
  • Français

A gendered and spatio-temporal positioning of mental harm within the principle of proportionality in international humanitarian law

Published online by Cambridge University Press:  06 July 2026

Sharelle A. Aitchison Open the ORCID record for Sharelle A. Aitchison [Opens in a new window]
Sharelle A. Aitchison*
Affiliation:
Member, Immigration and Protection Tribunal, Auckland, New Zealand Doctoral Candidate, University of Auckland, Auckland, New Zealand
*
Email: sharelle.aitchison@justice.govt.nz
Rights & Permissions [Opens in a new window]

Abstract

This article brings a critical feminist phenomenological lens to a central pillar of the international humanitarian law regime – the proportionality rule – and reflects on how the narrow, masculine orientation of the norm fails to accommodate women’s experiences of incidental mental harm. While women disproportionately experience double the rates of post-traumatic stress disorder in response to trauma events than do men, the proportionality rule does not expressly include mental harm within its ambit, exposing the rule to conservative interpretation and exclusionary applications for gendered mental harm. Some interpretations of the temporal constraints of the rule (concerned with the legality of single strikes, absent their latent, reverberating effects) reflect a dominant event-based legal model at odds with women’s experiences of mental harm that are protracted, cumulative and repercussive. Studies reveal women’s fear as a product of constructions of masculinity and femininity, structural inequity, and fear conditioning. This article offers a reparative response through a gendered and temporal alignment of the principle of proportionality with women’s experiences of mental harm in armed attacks.

Keywords

gendertimetemporalityspatialityprinciple of proportionalityarmed conflictpost-traumatic stress disorderincidental harmmental harmmasculine and femininegender roles

Information

Type
Research Article
Information
International Review of the Red Cross , First View , pp. 1 - 27
Creative Commons
Creative Common License - CCCreative Common License - BY
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0), which permits unrestricted re-use, distribution and reproduction, provided the original article is properly cited.
Copyright
© The Author(s), 2026. Published by Cambridge University Press on behalf of International Committee of the Red Cross.

Introduction

Scientific studies convey that civilians and soldiers are at high risk of serious, long-term mental harm, such as anxiety, depression and post-traumatic stress disorder (PTSD),Footnote 1 as a consequence of conflict-related violence.Footnote 2 Traumatic stressors for PTSDFootnote 3 in conflict may be direct and intentional (such as being physically or sexually harmed), indirect (such as a sudden death of a family member or seeing dead or injured persons) or incidental (through the experience of military attacks, including air strikes, shelling and shooting).Footnote 4

Although international humanitarian law (IHL) and one of its implementing arms, international criminal law,Footnote 5 recognize and proscribe certain intentional mental harms, there is no express protection for incidental mental harms that may arise as the consequence of an attack directed against a lawful target.Footnote 6 IHL prohibits forms of intentional mental harm, where Article 51(2) of Additional Protocol I to the Geneva Conventions (AP I) proscribes “acts or threats of violence the primary purpose of which is to spread terror” among civilians. The notion of “terror” notably encompasses intentional, not incidental, infliction of mental harm.Footnote 7 The IHL rules that protect civilians from incidental harm (such as those relating to proportionality and feasible precautions in the choice of means and methods of attack) do not expressly refer to mental harms.Footnote 8

Similarly, international criminal law criminalizes a range of acts that inflict mental pain or suffering, including the war crimes of inhuman treatment, torture, wilfully causing great suffering, mutilation and biological experiments, and the crimes against humanity of inhuman acts, torture, rape, sexual violence and enforced prostitution.Footnote 9 The crime of genocide also expressly includes the act of “causing serious bodily or mental harm” within its ambit.Footnote 10 However, incidental mental harm is not expressly specified in international criminal law statutes.

Notwithstanding the lack of express inclusion of incidental mental harm in the text of the law, there has been an emerging consensus by international bodies, academics and some States of the significance of the psychological impacts of armed attacks,Footnote 11 which is well documented by neuroscience in this area. Studies reveal that terrorist and military attacks are salient stressors that generate incidental mental harm amongst exposed civilians,Footnote 12 and PTSD is reported in approximately a third of the population situated in, or closely proximate to, an attack, such as a missile strike or bomb explosion.Footnote 13 Compounding this concern is the reality that women, in general, are at a heightened risk of experiencing PTSD, exhibiting double the rates of men.Footnote 14 The debilitating impacts of PTSD are outlined in diagnostic criteria which include the re-experiencing of trauma, avoidance and numbing, and increased arousal.Footnote 15

Through a critical feminist phenomenological lens that “calls for us to pay attention to gendered[Footnote 16] experiences that have been rendered invisible”,Footnote 17 this article examines the spatio-temporal structures of the jus in bello proportionality rule as one of the normative cornerstones of IHL that govern targeting decisions in armed attacks which cause harm to civilians. The rule balances humanitarian and military objectives, prohibiting disproportionate attacks that “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated”.Footnote 18 With respect to injury to civilians, the rule has historically been interpreted to encompass physical injuries only.Footnote 19 There has long been a lack of precision, transparency and attention to the interpretation of proportionality in general, but increasingly over the past decade, experts have been asserting that mental injury is included in the injury referred to in Article 51 of AP I.Footnote 20

Concerningly, on a narrow reading of civilian harm precluding mental injury, the proportionality rule quantifies exogenous harm (to life or limb) and neglects endogenous forms of psychological harm. This is inconsistent with the aforementioned science showing that exposure (often repeated) to potentially traumatic events, such as aerial bombardment, shelling, sniping or siege tactics, may cause serious and long-term mental harm. The failure to apprehend mental harm within the ambit of the proportionality rule has serious consequences for the civilian population, with gender-differentiated impacts.

Women – who, as noted above, experience double the rates of PTSD through trauma events than do men, often against a backdrop of structural inequalities and gender discrimination – are disproportionately affected by a narrow reading of the proportionality rule that neglects their gendered experience of mental harm. Pivoting on this concern, the present article examines in detail the gendered implications of the rule and its interpretation, drawing on critical feminist phenomenology to demonstrate how certain interpretations of the foundational rule of proportionality presuppose a limited frame of gendered experience.Footnote 21 Importantly, this lens calls for a stepping back from masculine assumptions embedded in interpretations of the law to provide a description of women’s experiences as they are.Footnote 22

By appraising women’s experiences in their multidimensional social, cultural and temporal context, the critical feminist phenomenological method reveals how the proportionality exercise predominantly measures military advantage against incidental loss to civilians in a linear, episodic fashion, divorced from the broad spatial and temporal continuum that comprises mental harm and women’s experiences. This article asserts the importance of applying a broader temporal frame to capture women’s experience of mental harm in the context of armed attacks. Women’s experiences of violence (and its anticipation) are not solely episodic or event-based, but are instead chronic, cyclical and cumulative. Such experiences must be contextualized in their broader socio-cultural landscape that encompasses pre-existing structural inequalities and discrimination.

This article signals the “very limited recognition that women experience armed conflict differently from men”Footnote 23 and responds to the call to reappraise and reinterpret IHL in order to accommodate women’s experiences of harm in armed conflict.Footnote 24 It brings a critical feminist phenomenological lens to a central pillar of the regime – the proportionality principle – and reflects how the narrow, masculine orientation of the norm fails to accommodate women’s broad, continuum-contingent experiences of harm. While gender critiques of the proportionality rule are not new,Footnote 25 this article focuses in particular depth on women’s experience of mental injury.

Following this introduction, a critical feminist phenomenological lens is applied to women’s experiences of mental harm in the context of trauma events (in both peace and wartime), mapping the conditions that foster this phenomenon. The next section extends this lens to the principle of proportionality and considers the principle’s gendered and spatio-temporal dimensions. The article then concludes with a summary of the findings and a few final reflections on a gendered and temporal reinterpretation of the proportionality rule.

A critical feminist phenomenological lens and women’s experiences of harm

While there is increasing literature and jurisprudence on the gendered harms that may arise in conflict according to sex or socially ascribed roles and responsibilities,Footnote 26 the gendered nature of incidental mental harm is relatively unexplored. For a range of socialized and structural reasons, women have a 50% greater chance of suffering from PTSD than men when exposed to military attacks.Footnote 27 This section applies a critical feminist phenomenological lens to prise apart this experience and map the conditions that engender and sustain this phenomenon.Footnote 28

Critical feminist phenomenology

An individual’s shared social, cultural and physical world is gendered,Footnote 29 and their “experience is shaped by gendered habits, expectations, and embodiments”.Footnote 30 Critical feminist phenomenology is a method that uncovers “structures of perception, experience and consciousness”Footnote 31 and builds “descriptions of phenomena on their own terms”.Footnote 32 It invites the “suspension of habitual and theoretical presuppositions in order to uncover and describe the world as it appears before us”.Footnote 33 Fundamentals of the method include the understanding that individuals, as active subjects, are situated in a shared socio-cultural world and that the “process of perceiving, experiencing or being conscious of phenomena [is] orientated by – and within – spatial, temporal and intersubjective spaces”.Footnote 34 Its normative purpose “recognises that certain ways of experiencing the world are privileged, naturalised, and normalised along structured lines and that, conversely, certain ways of being-in-the-world are rendered invisible”.Footnote 35

This feminist lens will be applied to the gendered experience of trauma and fear on a continuum of peace and wartime, and ultimately to the experience of an attack in the context of the proportionality exercise. An attack predictably induces “chronic feelings of insecurity and threat”,Footnote 36 and such feelings influence “mental and physical health outcomes during and post-conflict, including PTSD, depression, and anxiety”.Footnote 37 Fear can also impact “[i]mportant health-related behaviours such as movement within the community, the development of supportive social relationships, utilization of health services, marriage, childbearing and migration”.Footnote 38

The gendered experience of fear and its consequences

Sex and gender, amongst other factors, are recognized as contributory factors to the “emotional development of fear”, trauma and PTSD.Footnote 39 Christiansen explains that sex and gender influence these mental states in myriad ways that include

[c]ombinations of genetic predisposition and hormonal influences and fluctuations along with individual gender-roles and whether or not these are at odds with what is generally recognised by the social surroundings as being acceptable masculine or feminine behaviour.Footnote 40

Women are reported to experience higher anxiety and fear of violence in conflict settings, contributing to serious mental health conditions.Footnote 41 Some attribute this to gender differences in socialization about self-efficacy, and to women’s level of agency and autonomy.Footnote 42 In the context of armed conflict in Nepal, Williams et al. studied how social roles and responsibilities influenced levels of fear of violence during armed conflict. Their findings resonate with other studies showing that women in patriarchal societies are socialized to believe that they are more vulnerable, less able to cope with psychological stress induced by violence, and less able to control their situation.Footnote 43 Williams et al. record that in many instances, women were unable to make decisions for themselves and their family members, which escalated their fear.Footnote 44 Valdez and Lilly insightfully explain that

women’s socialization experiences may lead women to feel as though they lack control and autonomy … which can result in a cognitive style that increases the probability that women will interpret a traumatic event as threatening and uncontrollable, as well as undermine self-efficacy and ability to cope with distress.Footnote 45

There is also a strong correlation between gender roles and altruistic fear for others, particularly women’s fears for vulnerable family members such as children and the elderly. The phenomenon of altruistic fear demonstrates gender harm as “thoroughly social” and not vested solely in the individual.Footnote 46 As Ní Aoláin explains, “the concept of harm can only be effectively harnessed to women’s experiences when it fully encompasses the social and group effects of certain harms”,Footnote 47 which Durham and Green would contextualize in relation to women’s “perceived place in … increasingly fragile societ[ies]”.Footnote 48 Women are conditioned as carers and to be responsible for the needs of children and the elderly; in the conflict context, Durham and Green explain that

[t]he socially prescribed gender roles assigned to women in most societies mean they are disproportionately responsible for family unity, caring for children and the elderly in a context in which the infrastructure of the state (from schools to hospitals) has eroded over the longer period.Footnote 49

Women not only experience altruistic fear for others, but may experience serious mental harm upon witnessing or learning of harm to loved ones in peacetime and conflict.Footnote 50 Ní Aoláin elaborates that “there are communities of harm that include all of those people emotionally tied to the victim or in a relationship of codependency with them”.Footnote 51 Further, “[m]any women know and feel instinctively when harm comes to those connected to them: that the harm is not disembodied and unrelated to them but that they feel and experience it as a direct harm to the self”.Footnote 52 Such harm has notably been recognized in national and international reparation schemes which recognize as victims (in the context of violations of international human rights law and IHL) those directly and indirectly impacted through close family relationships.Footnote 53 Many of these reparation schemes are sensitive to the gendered impacts of violence in the family due to relationships of interdependency whereby “even if widespread violence targets primarily men, its legacy has profound consequences for women”,Footnote 54 including mental harm and other social and economic effects.Footnote 55

A further factor exacerbating gendered fear includes pre-existing mental conditions that stem from structural discrimination and violence against women and girls.Footnote 56 In the trauma context of hurricanes, Norris et al. found that high exposure to gender discrimination and oppression renders women more vulnerable and reduces their ability to cope with traumatic stressors.Footnote 57 In the context of conflict in Colombia, Zamora-Moncayo et al. report how “conflict exacerbates historical gender violence and inequalities” and intensifies trauma responses for women.Footnote 58 Ní Aoláin, too, highlights, in the context of armed conflict in Gaza, how “the consequences for women of cumulative violations [of IHL] are particularly grave because sustained violations by Israel in this war are built on pre-existing societal inequalities and vulnerabilities”.Footnote 59 She elaborates that “these inequalities follow from both the structure of local practices and customs regarding women, and from the nature, form, and impact of Israel’s occupation and interface with that polity”.Footnote 60

Gender norms during peacetime elevate the propensity for armed conflict,Footnote 61 and “cultures of violence and discrimination against women existing prior to the onset of hostilities tend to be exacerbated during conflict”.Footnote 62 Predictably, studies convey that PTSD is elevated in communities that exhibit traditional gender stereotypes and roles.Footnote 63 Conceiving of gender violence as a continuum rather than a simple war/peace dichotomy,Footnote 64 it may be extrapolated that elevated rates of PTSD as exist in communities that exhibit traditional gender roles continue in times of war.Footnote 65 Factoring in this context, Ní Aoláin emphasizes the importance of bringing a broad temporal and spatial lens to women’s circumstances and contexts in order to understand the trauma experienced by them.Footnote 66

This broad temporal and spatial lens extends beyond the individualized parameters of the biomedical Diagnostic and Statistical Manual framework for PTSD (which focuses more narrowly on direct threats to one’s life and physical integrity) and includes cultural concepts of distress that vary across cultural and country settings. As explained by Bovey et al., “[h]uman suffering often manifests in the shape of cultural concepts of distress and is communicated through cultural idioms, which cannot be isolated from the broader context in which they emerge”.Footnote 67 Bovey et al. elaborate on how difficulties experienced while living in conflict settings may include

the loss of identity and role fulfilment, loss of social structures and resources, such as the loss of loved ones, separation from family, loss of community and social networks, loss of culturally relevant coping mechanisms and economic deprivation and suffering.Footnote 68

Across cultures, women are conditioned to fear. Twemlow et al. depict how women are conditioned or habituated to anticipate violence by their socio-cultural environment, stating that

[due to] the social habituation of how and when women are expected to mitigate the risk of violence, the potential of violence is perceived everywhere and at any time. The practical, everyday implication of this habituation is that women find themselves undertaking actions to reduce ambiguity; for example, by limiting the spaces they occupy or the interactions they undertake.Footnote 69

Through fearful anticipation, women find themselves restricting the spaces they occupy, reproducing male-dominant spacesFootnote 70 – features that are heightened during wartime. These fears persistFootnote 71 and are amplified in conflict settings, where highly visible forms of violence such as rape, sexual violence and gender-based violence are carried out as “a deliberate strategy of control” and as a means to terrorize civilian populations.Footnote 72 This broader context terrorizes women and conditions them to fear.

This gendered experience of fear and its consequences are elaborated upon in the following section in relation to the central IHL rule of proportionality, demonstrating the disjuncture between the gendered experience of violence and the temporal structure of violence in the law.

A critical feminist phenomenological lens and the principle of proportionality

The gendered nature of international humanitarian law

IHL purports to operate on a neutral, objective basis, free from gender- or sex-based discrimination. The Geneva Conventions and their Additional Protocols express the obligation of equal treatment and non-discrimination, where protected persons are to be treated similarly and without any adverse distinction based on, among other categories, sex.Footnote 73 While the letter of the law is gender-neutral, it must be recalled that a legal norm can still be “gendered in conception and gender-biased in practice”.Footnote 74 Gardam and Jarvis critically assert that because IHL is masculine in orientation, it is premised on a norm that is not neutral in value, but discriminatory.Footnote 75 Gardam explains how the masculine norm of IHL is premised on a false assumption that,

apart from their role as mothers and in the context of sexual violence, women not only share the same experience of armed conflict as other members of the population but are able to avail themselves equally of the existing provisions offered by IHL.Footnote 76

Viseur Sellers insightfully records that under the Geneva Conventions, a woman requires nineteen provisions “to cover her status as an expectant or nursing mother”, and that “twenty-four provisions in their majority deal with preserving her honor and dignity from incidents of rape and other sexual violence”.Footnote 77 She further elaborates that “honor and dignity for the IHL woman centers on her chastity and reproductive role, not the fact that she too is surviving an on-going conflict”.Footnote 78

Armed conflict and the military have long been associated with stereotypical gender roles which portray women as subservient and devoted to looking after their “menfolk”.Footnote 79 This is evident in some IHL rules that depict women in relation to others and not as individuals in their own right.Footnote 80 Whilst individuals do not necessarily conform to stereotypes, Chinkin and Kaldor explain how political and military leadership is masculinized and that “masculinity is largely associated with physical strength, action, hardness and aggression in conflict” and femininity with “passivity, empathy, caring and emotion”.Footnote 81 Steans observes that “[m]ilitarists use the myths of war’s manliness to define soldierly behaviour and to reward soldiers”.Footnote 82 Soldiers are regarded as heroes, which reinforces a protector/male and protected/female dichotomy. Associating women with the terms “protected” and “victim” implies “weakness and subordination”, perpetuates their “lack of empowerment” and “mask[s] the reality of [their] experiences of violence”.Footnote 83 As can be seen, constructions of masculinity and femininity are central to how conflicts play out and to interpersonal experiences of violence.Footnote 84

This gender essentialism ignores the full-scale differential impacts that armed conflict has on women, which stem from systematic gender inequalityFootnote 85 and which heighten endemic discrimination against them.Footnote 86 It reveals a legal regime that is premised primarily on male experience and that speaks to men alone.Footnote 87 The notion of gender does not appear anywhere in the Geneva Conventions and Additional Protocols, which are restricted to the terms “sex” and “women” only.Footnote 88 Its absence is significant, as gender- and sex-specific needs differ, and without clear recognition of gender there is a real risk that a range of gendered harms will not be seen.

In recent decades, however, there has been a welcome gendering of IHL through gender-sensitive interpretations of foundational principles. Gender is now accepted by many States to be one of the criteria falling under the prohibited ground of adverse distinction based on “any other similar criteria”.Footnote 89 In various public explanations, the International Committee of the Red Cross (ICRC) has emphasized that the gender mainstreaming in its updated Commentaries to the Geneva Conventions is based on the legal requirement to apply the Conventions’ provisions without discrimination, including to remove discriminatory interpretations.Footnote 90

The proportionality rule

It is in this context that the proportionality rule operates.Footnote 91 The rule (as one of a cluster of targeting rules that include the rules of distinction and precautions in attackFootnote 92) is codified in Article 51(5)(b) of AP I and prohibits any attack “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”. Proportionality is accepted as a rule of customary international law that is applicable in international and non-international armed conflicts.Footnote 93 Violation of the principle also constitutes a war crime in international armed conflicts under the Rome Statute of the International Criminal Court.Footnote 94

There are three forms of harm encompassed in the rule – namely, loss of civilian life, injury to civilians and damage to civilian objects. There is no definition of what amounts to “injury to civilians” in AP I. As mentioned, while there are some limited exceptions,Footnote 95 the historical view has been that the term “injury” solely encompasses physical harm, not mental harm.Footnote 96 However, increasingly over the past decade, proponents for the inclusion of mental harm within the rule have argued that the ordinary and contemporary meaning of the term “injury” encompasses both physical and mental injury.Footnote 97 According to Article 31(1) of the Vienna Convention on the Law of Treaties,Footnote 98 the first interpretive recourse is to the ordinary meaning of the term “injury”, and there has long been recognition in science and the discourse of the United Nations (UN) of the holistic physical and mental dimensions to health and well-being.Footnote 99 Fundamentally, in the twenty-first century, mental and physical health have equal status.Footnote 100 Adherents of this view also emphasize that the law is a living instrument which should be interpreted in a flexible, dynamic fashion;Footnote 101 the law should accommodate “growing scientific data establishing the influence of mental health on physical health”,Footnote 102 where science establishes that “PTSD is linked to physical effects on the brain which could be permanent”.Footnote 103 They assert that a purposive interpretation of the rule supports this.Footnote 104

On its face, the proportionality rule appears gender-neutral as it aims to protect the civilian population with no differentiation on sex grounds. Both men and women who experience mental harm as a consequence of an attack are unprotected from this form of harm. As elaborated by Gillard, the fact that mental harm was not considered by the drafters of the core provisions may reflect that they did not consider that attacks (as distinct to torture or ill-treatment, for instance) could cause mental harm; she states that two representatives who participated in the negotiations of Articles 51 and 57 of AP I told her that mental harm was simply not taken into account.Footnote 105 However, while there may historically have been insufficient attention to the nature of mental harm in international law,Footnote 106 this has changed over the past few decades, with demonstrable academic interest and notable expert meetings being held on the subject by organizations such as the ICRC, the International Law Association (ILA) and Chatham House.Footnote 107

It should be recalled that the proportionality rule still operates in a male normative scheme “where militarisation is gendered in its aims (competitive power and strength), its means and its impact, which disproportionately and negatively affect women”.Footnote 108 In this framework there are real risks for subordinated genders, given the lack of specificity to the rule.Footnote 109 The differential impacts that armed conflict have on women – exhibited through higher rates of mental harm that stem from pre-existing gender inequalities (including women’s conditioning to fear) – are all too real. Jarvis and Gardam helpfully explain that “given their primary role in protecting and caring for family members [women] are frequently less able to flee attacks and, even if they succeed, they face the risk of sexual violence and harassment from all sides”.Footnote 110

In this context, it is pivotal to maintain the shift and forward momentum away from a masculine scheme premised on false assumptions that limit recognition of women’s experiences of harm. Women’s experiences of mental trauma must not be omitted from the protective ambit of the proportionality rule.

Temporal limitations of the proportionality rule

A gender-sensitive reading of the temporal construction of the proportionality rule is vital to this aim. Feminist temporal scholars reveal time as a gendered regime that is shaped by “neoliberal, heterosexist, colonial and masculinist power”.Footnote 111 They see time as a “patriarchal invention”, one that is “rooted in capitalist/industrial ideologies of production”, and assert that “productive time is masculine time”;Footnote 112 Westernized masculine time structures are linear, episodic and future-oriented.Footnote 113 It is this reading of time that we see embodied in the proportionality rule, which fails to appreciate the multidimensionality of time and how women and men experience time and harm differently, “with divergent temporal expectations and logics”.Footnote 114 Whilst the proportionality rule is predominantly linear, episodic and masculine in orientation, women’s experience of mental harm in the context of attacks is cumulative, cyclical and continuum-contingent.

For the proportionality rule to apply, incidental harm must be expected to occur in the course of an attackFootnote 115 directed against a lawful target. The lawfulness of the attack will then be judged on its reasonably foreseeable consequences at the time the attack was carried out.Footnote 116 In applying the rule, some States have advised that military advantage should be measured in the context of “the attack considered as a whole and not only from isolated parts thereof”.Footnote 117 This means that if a single attack forms part of a larger military operation comprised of acts which may or may not be considered to be attacks, then the operation overall will be considered “the attack as a whole”.Footnote 118 This is the only instance in IHL where separate attacks are grouped together for a proportionality assessment. However, while military advantage is measured through such cumulative means, incidental harm is not; although some have suggested considering the cumulative incidental harm to civilians for repeat attacks,Footnote 119 there has been little support for this.Footnote 120

Ní Aoláin explains how the compounding, cumulative nature of attacks is neglected in the proportionality exercise, stating that the targeting rules

[w]ere developed to some greater or lesser degree in a framework that envisaged military decision-making as a series of one-off decisions and did not specifically anticipate that the civilian population that might be adversely affected was persistently the same population subjected to the same military measures over and over again (with no end in sight). As a result, the cost of persistent attacks on a population is not adequately measured. While the measurement of incidental harm pursuing a valid military objective is required to take account of changed circumstances, in practice it does not currently account for the cumulative, sequential targeting of civilian objects or persons.Footnote 121

Ní Aoláin recommends that incidental mental harm should be calculated having regard to connected prior attacks, emphasizing that it is the cumulative impact of targeting decisions, not solely the outcome of one specific decision, which “is decisive to [civilians’] (lack of) protection and exacerbates their vulnerability”.Footnote 122 A cumulative assessment importantly subverts the dominant Westernized, masculine temporality, reading time instead as multidimensional, having regard to its linear and cyclical qualities and giving equal attention to past, present and future.Footnote 123 This is consistent with a feminist phenomenological perspective which comprehends that the gendered body (and the harm it embodies) is always under production, is ongoing and cumulative, and is not “a static truth”.Footnote 124

Besides the episodic nature of the measurement of incidental civilian harm, there is also the question of whether harm is to be measured in the short or long term, and where the causal chain of harm ends in the application of the proportionality rule. This in turn raises questions about the relevance of future, repercussive, incidental effects. There is some divergence of opinion on this issue, where Lieblich, for instance, states that such questions are “virtually absent” from any discussion of the proportionality rule,Footnote 125 while others recognize that international debate as to whether to take into account the reverberating effects of an attack has increased over the past decade, and there is a greater acceptance of such effects by States and commentators.Footnote 126 Organizations such as the ICRC, the ILA Study Group on the Conduct of Hostilities in the 21st Century (ILA Study Group) and Chatham House have conducted intensive studies into the temporal parameters of the proportionality rule, concluding that incidental civilian harm is not limited to immediate damage or destruction of civilian objects or injuries and deaths among civilians.Footnote 127 The text of Article 51(5)(b) of AP I does not specify a temporal requirement, and some consider it legally required that reasonably foreseeable direct and indirect harm be taken into account. The ICRC has raised concerns about a “lawfare”-style permissive interpretation of the rule, stating:

The protective effect of the law is … being undermined by the way some states are interpreting its core concepts and utilizing its more indeterminate provisions. These interpretations … make civilian casualties more acceptable through interpretations of the proportionality principle that define “military advantage” with increasing generosity while simultaneously excluding long-term, reverberating effects from the notion of “incidental harm”.Footnote 128

Interpreting the proportionality rule to include not only the immediate but also the long-term, foreseeable effects of attacks accords with a non-dualist, multidimensional perspective of time. This represents an important shift from the dominant masculinized time structure that temporally and spatially constrains gendered harm.

Violence occurs at “various scales in terms of duration and speed”;Footnote 129 slow forms of violence (including mental harm) are processional and not solely event-based, and hence are not easily detected by the law. On this theme, Nixon characterizes slow violence as “violence that occurs gradually and out of sight, a violence of delayed destruction that is dispersed across time and space, an attritional violence that is typically not viewed as violence at all”.Footnote 130 Many forms of violence cannot neatly fold into a linear, episodic and event-based model.Footnote 131 The psychological effects that ensue from attacks are no exception.

Conservative interpretations of the temporal constraints of the proportionality rule (which concern “decontextualized discussions on the legality of single strikes”, plighted by “excessive abstraction”Footnote 132) reflect a dominant event-based legal model particularly at odds with women’s experiences of mental harm that are protracted, cumulative and repercussive. The science demonstrates how women’s fear occupies a wide temporal and spatial scope for anticipating violence that is underpinned by structural inequitiesFootnote 133 and fear conditioning.Footnote 134 Trauma is “neither time-specific nor singular in effect. Rather, its effects can far exceed the original moment of the violence itself.”Footnote 135 Meiches explains that “neuroscience points to a stronger, complex series of feedback loops between environmental, social, and biological life where violence against any of these dimensions may precipitate a series of significant, nonlinear effects on communal life”.Footnote 136 Copoeru similarly reflects on how the condition of experiencing violence exists in a plurality of effects and “modes of experiencing”.Footnote 137

Reverberating effects that ensue from attacks and associated harm may include displacement and new risks associated with that predicament. Armed conflict (including attacks) is a well-known precursor to displacement,Footnote 138 a condition that amplifies harms to women, including sexual violence.Footnote 139 In a report published by the ICRC, direct displacement and economic effects have been considered relevant to the assessment of proportionality:

A number of military manuals and declarations made by States refer to “adverse effect”, “possible harmful effects”, “suffering and destruction”, or “the humanitarian consequences” caused by the attack when talking about incidental harm. These are all notions which could be understood to encompass economic loss or displacement. In relation to economic loss, the Final Report to the Prosecutor Reviewing the NATO Bombing Campaign in the [Federal Republic of Yugoslavia] noted, more specifically, that “[e]ven when targeting admittedly legitimate military objectives, there is a need to avoid excessive long-term damage to the economic infrastructure (…) with a consequential adverse effect on the civilian population”.Footnote 140

The fact that battlefields are now increasingly urban means that “critical infrastructure essential to the lives of the civilian population is frequently damaged or destroyed”Footnote 141 in a “domino effect”.Footnote 142 Women, whose gender roles prescribe the care of family members such as children and the elderly, face considerable challenges through the disruption of such infrastructure, compounding their mental health concerns. Significantly, mental harm and associated repercussive effects ensuing from attacks typically take place in the context of protracted armed conflicts, which have been becoming longer and more intractable over time.Footnote 143 The frequency and intensity of attacks have also grown exponentially. These temporal features intensify the harm to women through the magnitude and intensity of attacks that are underpinned by gendered vulnerabilities amplified on the peace–conflict continuum. Fundamentally, the temporality of women’s experiences of violence across a broad, cumulative continuum must be embodied within the ambit of the law.

In this regard, military doctrine and practice could usefully be developed to consistently encompass the evaluation of mental harm in the proportionality exercise. An enlightened example is NATO’s Joint Targeting Doctrine, which mandates “consideration of collateral psychological effects”Footnote 144 and recognizes that “[l]ethal and non-lethal engagements can result in psychological effects, some of which may be undesirable”.Footnote 145 The doctrine further reflects how essential it is to understand “the human environment”, as this allows for a “better definition of desired and undesired psychological effects”, which in turn reduces risk of harm.Footnote 146 Commanders and their staff are called upon to “reduce the risk by understanding the human environment through target audience analysis”.Footnote 147

Further exploration of the barriers to State recognition of mental civilian injury is required, whether they be legal or practical in nature, including the development of collateral damage estimate methodologies to quantify mental harm.Footnote 148 Such assessments would be assisted by “more finely grained data” correlating trauma with different kinds of common forms of military attack, such as air strikes, roadside improvised explosive devices and so forth,Footnote 149 and concerning their gender-differentiated impacts. A dialectic approach, balancing the universal, biomedical model of PTSD with culture-specific understandings when assessing mental harm, is also to be encouraged.Footnote 150 Informed proportionality assessments could then take into account the gendered vulnerabilities to mental harm, which may be exacerbated through attacks, for instance, in country contexts that exhibit systemic gender inequality and discrimination. Ní Aoláin importantly advocates for such a cumulative lens oriented to pre-existing and ongoing injuries, stating:

One legal consequence of a cumulative civilian harm lens is that it would place clear and unrelenting obligations on the military commander both at the tactical and senior command levels, to assess the full gamut of what the civilians have already suffered prior to making any additional military decisions. Proportionality, for instance, is deeply implicated in a cumulative civilian assessment because this would demand an engagement with the cost of the military decision balanced with the knowledge of prior evidenced cumulative civilian suffering.Footnote 151

To this, the author would add that, deploying a multidimensional temporal lens, the future, foreseeable, long-term gendered effects of attacks should also be encompassed in this cumulative assessment. Lubell and Cohen argue that a cumulative proportionality lens is consistent with general principles of law and is reflected through State practice,Footnote 152 which “requires an ongoing assessment throughout the conflict balancing the overall harm against the strategic objectives”.Footnote 153 They trace the origins of the proportionality principle within jus in bello (as explored in this article) and jus ad bellum (where resort to force engages proportionality and necessity as its cardinal principles), explaining how proportionality was recognized as a legal principle as early as Roman law times and quoting from Francisco Suárez, who wrote in the seventeenth century that “due proportion must be observed in [war’s] beginning, during its prosecution, and after victory”.Footnote 154 This author agrees that “it is time to return to the original meaning of proportionality as a rule limiting the use of force, both before and during the conflict”,Footnote 155 requiring that overall harm should not outweigh military objective. This cumulative lens would operate as another complimentary level of proportionality regulation.Footnote 156

This cumulative proportionality exercise is the responsibility of the high-level command and executive branch at the strategic level where general targeting policies are implemented, and should be “reevaluated continuously throughout the armed conflict”.Footnote 157 This will, in turn, influence proportionality assessments in relation to single attacks, which should view incidental harm not in isolation but in the light of accumulated harm – including mental harm. To enhance clarity in military doctrine and practice concerning proportionality, the ICRC, international and regional organizations and civil society could initiate further working groups on the subject and/or lead the development of a soft-law instrument such as a set of guiding principles on proportionality, setting out existing law and suggesting good practices for implementation. A wide range of expertise and experiences should be drawn from, including those of psychological experts. As explained by Droege and Giorgou, “such approaches based on policy and good practice constitute a pragmatic response to humanitarian concerns when faced with the reluctance of States to engage in lawmaking clarification processes”.Footnote 158

Conclusion

This article foregrounds women’s disproportionate experience of mental harm associated with armed attacks. It exposes how these experiences and gendered understandings are tethered to deep, structural inequities and societal discrimination against women that condition them, in peace and wartime, to hypervigilance and fear of violence. The jus in bello proportionality rule has been critiqued for presupposing a limited frame of gendered experience, where certain narrow readings of the law ignore mental harm to women. It is argued that a contributing reason for this oversight is the failure to appreciate time as a multidimensional regime and the gendered and temporal implications of the rule.Footnote 159 Whereas women’s experience of mental harm is temporally stretched out, cumulative and continuum-based, interpretations of the law are too often hyper-focused on immediate, sensational instances of intentional harm.Footnote 160

The proportionality rule aligns with an event-based model that balances military purpose with civilian harm in relation to singular attacks. While some still maintain a conservative view as to the relevance of long-range ensuing effects, there is increasing support for diligent consideration of reasonably foreseeable direct and indirect repercussive effects. A failure to stay abreast of these developments, and to turn any attention to what civilians have already suffered as a consequence of earlier attacks, is misaligned with the temporality of civilian harm that includes gendered mental health effects.

According to O’Rourke, “[i]n feminist legal work, lived experience of harm is typically contrasted with legal categories with the ultimate aim of enhancing legal capture of such harm”.Footnote 161 This article calls for legal interpretations that broaden the spatial and temporal lens to fully encompass women’s experience of mental harm in the context of attacks. This equates to a “reparative reading” of the proportionality rule within its broader legal framework, finding legal space for women’s experiences of harm.Footnote 162 Such an approach coheres with critical feminist phenomenology, the general orientation in IHL towards a deeper understanding of personal harm and normative commitment to humanity,Footnote 163 and the increased recognition of incidental mental harm associated with armed attacks in other cognate areas of international law.Footnote 164

Footnotes

The advice, opinions and statements contained in this article are those of the author/s and do not necessarily reflect the views of the ICRC. The ICRC does not necessarily represent or endorse the accuracy or reliability of any advice, opinion, statement or other information provided in this article.

References

1 This article focuses on the mental harm of PTSD as the “most prevalent psychopathological consequence of exposure to traumatic events”, which lies at the particularly severe end of the harm spectrum and has been the subject of extensive scientific study: see Arieh Shalev, Israel Liberzon and Charles Marmar, “Post-Traumatic Stress Disorder”, New England Journal of Medicine, Vol. 376, No. 25, 2017, p. 2459. This categorization is officially recognized by major health organizations such as the World Health Organization and the American Psychiatric Association, and also by the United Nations (UN), whose member States are signatories to the core international humanitarian law (IHL) treaties. Developing categories is typical of science and legal disciplines, and it is helpful, for the purposes of this paper, to refer to PTSD as a category of serious mental harm. It is, however, acknowledged that this categorization is not a universally accepted construct in many societies which have alternative understandings and approaches to mental health. See Marion Bovey, Nadine Hosny, Felicia Dutray and Eva Heim, “Trauma-Related Cultural Concepts of Distress: A Systematic Review of Qualitative Literature from the Middle East and North Africa, and Sub-Saharan Africa”, SSM – Mental Health, Vol. 7, 2025; Julian D. Ford, Damion J. Graso, Jon D. Elhai and Christine A. Courtois, “Social, Cultural, and Other Diversity Issues in the Traumatic Stress Field”, Posttraumatic Stress Disorder, Vol. 503, 2015.

2 Jaime Moreno-Chaparro et al., “Mental Health Consequences of Armed Conflicts in Adults: An Overview”, Actas Espaňolas de Psiquiatría, Vol. 50, No. 2, 2022; Solon Solomon, “Bringing Psychological Civilian Harm to the Forefront: Incidental Civilian Fear as Trauma in the Case of Recurrent Attacks”, EJIL: Talk!, 25 April 2018, available at: www.ejiltalk.org/bringing-psychological-civilian-harm-to-the-forefront-incidental-civilian-fear-as-trauma-in-the-case-of-recurrent-attacks/ (all internet references were accessed in June 2026); Ruth Pat-Horenczyk et al., “Posttraumatic Symptoms, Functional Impairment, and Coping among Adolescents on Both Sides of the Israeli-Palestinian Conflict: A Cross-Cultural Approach”, Applied Psychology, Vol. 58, No. 4, 2009; Joop T. V. M. de Jong et al., “Lifetime Events and Posttraumatic Stress Disorder in 4 Post Conflict Settings”, Journal of the American Medical Association, Vol. 286, No. 5, 2001; Willem F. Scholte et al., “Mental Health Symptoms Following War and Repression in Eastern Afghanistan”, Journal of the American Medical Association, Vol. 292, No. 5, 2004.

3 A PTSD diagnosis is dependent on a traumatic stressor such as “exposure to actual or threatened death, serious injury, or sexual violence”. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed., 2013 (DSM-V).

4 R. Srinivasa Murthy and Rashmi Lakshminarayana, “Mental Health Consequences of War: A Brief Review of Research Finding”, World Psychiatry, Vol. 5, No. 1, 2006.

5 Crimes in international criminal law stem from treaty and customary IHL. For discussion on the relationship between these bodies of law, see Hortensa D. T. Gutierrez Posse, “The Relationship between International Humanitarian Law and the International Criminal Tribunals”, International Review of the Red Cross, Vol. 88, No. 861, 2006. See also Michelle J. Jarvis and Judith G. Gardam, “The Gendered Framework of International Humanitarian Law and the Development of International Criminal Law”, in Indira Rosenthal, Valerie Oosterveld and Susana Sácouto (eds), Gender and International Criminal Law, Oxford University Press, Oxford, 2020.

6 Sarah Knuckey, Alex Moorehead, Audrey McCalley and Adam Brown, “The Proportionality Rule and Mental Health Harm in War”, in Claus Kreß and Robert Lawless (eds), Necessity and Proportionality in International Peace and Security Law, Oxford University Press, Oxford, 2020, p. 369. Article 49(1) of Additional Protocol I to the Geneva Conventions (AP I) defines attacks as “acts of violence against the adversary, whether in offence or in defence”: Protocol Additional (I) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (entered into force 7 December 1978) (AP I), Art. 49(1). See also Emanuela-Chiara Gillard, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment, research paper, Chatham House, 2018, available at: www.chathamhouse.org/sites/default/files/publications/research/2018-12-10-proportionality-conduct-hostilities-incidental-harm-gillard-final.pdf; International Committee of the Red Cross (ICRC), The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under International Humanitarian Law, Geneva, 2018, p. 33; Michael N. Schmitt and Chad E. Highfill, “Invisible Injuries: Concussive Effects and International Humanitarian Law”, Harvard National Security Journal, Vol. 9, No. 1, 2018, pp. 95–96.

7 Eliav Lieblich, “Beyond Life and Limb: Exploring Incidental Mental Harm under International Humanitarian Law”, in Derek Jinks, Jackson N. Nyamuya and Solon Solomon (eds), Applying International Humanitarian Law in Judicial and Quasi-Judicial Bodies, T. M. C. Asser Press, The Hague, 2014, pp. 195–196.

8 Ibid.

9 See Rome Statute of the International Criminal Court, 2187 UNTS 90, 17 July 1998 (entered into force 1 July 2002) (Rome Statute), Arts 7–8.

10 See ibid., Art. 6(b), where genocide “means any of the following acts committed with intention to destroy, in whole or in part, a national, ethnical, racial or religious group, as such[:] … (b) causing serious bodily or mental harm to members of the group”.

11 According to E.-C. Gillard, above note 6, para. 111, having regard to “developments in the medical understanding of mental harm since 1977, and its increasing recognition in human rights law and IHL, there is no reason in principle to exclude mental harm from the scope of proportionality assessments”. All States party to the Geneva Conventions and the components of the International Red Cross and Red Crescent Movement passed a unanimous resolution in 2019 at the 33rd International Conference of the Red Cross and Red Crescent (International Conference), which states:

  • recognizing that mental health and psychosocial well-being are critical to the survival, recovery and daily functioning of people affected by armed conflicts …

  • …

  • recalling the Constitution of the World Health Organization, which recognizes that health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity …

  • …

  • affirming that the existing international legal frameworks, including international humanitarian law and international human rights law, as applicable, provide for protections that may be relevant to mental health and psychosocial being, and recognizing that respect for those protections may significantly contribute to addressing the challenges in preventing and meeting mental health and psychosocial needs …

33rd International Conference, Res. 2, “Addressing Mental Health and Psychosocial Needs of People Affected by Armed Conflict, Natural Disasters and Other Emergencies”, 2019, available at: https://mhpsshub.org/resource/resolution-33rd-international-conference-of-the-red-cross-and-red-crescent/. Note that the NATO Joint Targeting Doctrine requires consideration of collateral psychological effects in targeting decisions: NATO, Allied Joint Doctrine for Joint Targeting, AJP-3.9, Edition B, Version 1, 9 November 2021 (NATO Joint Targeting Doctrine), Chap. 1, Section VII, § 1.7(i). Note, too, that the war crime in Article 8(2)(b)(iv) of the Rome Statute, which refers to clearly excessive “injury to civilians” (but only for international armed conflict), has been interpreted to include mental harm: see International Criminal Court, Office of the Prosecutor, Policy on Gender-Based Crimes, December 2023, paras 28, 67, available at: https://www.icc-cpi.int/sites/default/files/2023-12/2023-policy-gender-en-web.pdf. The Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations also reflects a consensus of experts that mental harm should be included within the ambit of civilian harm: Michael N. Schmitt (ed.), Tallinn Manual on the International Law Applicable to Cyber Operations, 2nd ed., Cambridge University Press, Cambridge, 2017 (Tallinn Manual 2.0), pp. 417, 443. The UN Secretary-General has also emphasized the importance of taking into account individual mental and societal harms in the application of the proportionality doctrine: see Protection of Civilians in Armed Conflict: Report of the Secretary-General, UN Doc. S/2024/385, 14 May 2024. The significance of mental harm (as a component of civilian harm in the application of the proportionality rule of Article 51(5)(b) of AP I) will be elaborated upon in the third section of this article.

12 S. Knuckey et al., above note 6, p. 400; Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48, 25 September 2009, paras 1653–1658 (concerning the psychological impact of rocket fire in Gaza). With regard to the psychological effects of the use of drones in armed conflicts, see International Human Rights and Conflict Resolution Clinic, Stanford Law School, and Global Justice Clinic, NYU School of Law, Living under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan, September 2012, pp. 80–88.

13 Avi Besser and Yuval Neria, “PTSD Symptoms, Satisfaction with Life, and Prejudicial Attitudes Towards the Adversary among Israeli Civilians Exposed to Ongoing Missile Attacks”, Journal of Traumatic Stress, Vol. 22, No. 4, 2009. See also S. Solomon, above note 2. Note, however, that “more finely grained data related to different kinds of common forms of military attack (for example, comparing PTSD rates from experiencing an air strike versus a roadside improvised explosive device) is difficult to find, and more research is necessary”: S. Knuckey et al., above note 6, p.401.

14 Females exhibit higher levels of PTSD than males, the ratio being approximately 2:1. Females also tend to experience PTSD of longer duration than males. David F. Tolin and Edna B. Foa, “Sex Differences in Trauma and Posttraumatic Stress Disorder: A Quantitative Review of 25 Years of Research”, Psychological Trauma: Theory, Research, Practice, and Policy, Vol. S, No. 1, 2008; Dorte Christiansen and Ask Elklit, “Sex Differences in PTSD”, in Emilio Ovuga (ed.), Post Traumatic Stress Disorders in a Global Context, InTech, 2012, p. 114; Dorte M. Christiansen, “Gender- and Sex-Based Contributors to Sex Differences in PTSD”, Current Psychiatry Reports, Vol. 22, No. 4, 2020; Rachel Kimerling, Rachel N. Ward, Sam Leder, Gisselle C. Tamayo and McKenzie Lockett, “Mapping the Gender Gradient in Posttraumatic Stress Prevalence: A Machine Learning Approach”, Journal of Traumatic Stress, Vol. 38, No. 4, 2025. See also Marianne S. Birkeland, Ines Blix, Oivind Solberg and Trond Heir, “Gender Differences in Posttraumatic Stress Symptoms after a Terrorist Attack: A Network Approach”, Frontiers in Psychology, Vol. 8, December 2017. The lifetime prevalence of PTSD is about 10–12% for women and 5–6% for men: Miranda Olff, “Sex and Gender Differences in Post-Traumatic Stress Disorder: An Update”, European Journal of Psychotraumatology, Vol. 8, 2017.

15 DSM-V, above note 3.

16 Where gender, put simply, reflects the socio-cultural meaning assigned to males and females in society: Patricia Viseur Sellers, “Gender Strategy is Not a Luxury for International Courts”, American University Journal of Gender, Social Policy and the Law, Vol. 17, No. 2, 2009, p. 301. According to the ICRC, gender “refers to the cultural expected behaviour of men and women based on roles, attitudes and values ascribed to them”: ICRC, Addressing the Needs of Women Affected by Armed Conflict, Geneva, 2004, p. 7. See also, M. J. Jarvis and J. G. Gardam, above note 5, p. 48; Sally Engle Merry, Gender Violence: A Cultural Perspective, Wiley-Blackwell, Newark, NJ, 2009, p. 180. Note that this article focuses primarily on the experiences of women in armed conflict, responding to the “continuing catastrophic levels of gender violence experienced by women in times of armed conflict”: M. J. Jarvis and J. G. Gardam, above note 5, p. 51. It is generally considered that women are disproportionately affected by armed conflicts: Christel Querton, Conflict Refugees: European Union Law and Practice, Cambridge University Press, Cambridge, 2023, p. 7.

17 Joy Twemlow, Catherine Turner and Aisling Swaine, “Moving in a State of Fear: Ambiguity, Gendered Temporality, and the Phenomenology of Anticipating Violence”, Australian Feminist Law Journal, Vol. 48, No. 1, 2022, p. 91.

18 AP I, Arts 51(5)(b), 57; Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 3(8). While the focus of this article is on incidental harm within the proportionality equation, it should be borne in mind that in the context of armed attacks, “one of the main strategies of fighting parties is to exercise political control over territory by forcibly displacing and terrorising populations through highly visible forms of human rights violations”: C. Querton, above note 16, p. 1. Note that mental harms triggered by such practices are not captured by the principle of proportionality as part of the rules regulating the conduct of hostilities.

19 See Laurent Gisel (ed.), International Expert Meeting Report: The Principle of Proportionality in the Rules Governing the Conduct of Hostilities Under International Humanitarian Law, ICRC, Geneva, 2016, p. 35, available at: https://www.icrc.org/sites/default/files/document/file_list/4358_002_expert_meeting_report_web_1_0.pdf. This report conveys the view of several experts that “while collateral damage estimate (CDE) methodology has developed to enable a better assessment to be made of the magnitude of the expected losses of life, physical injuries and damage, this is not the case for mental injury”. Referring to her research paper cited at above note 6, p. 33, Gillard states that “the majority of state practice considered for this paper does not take mental harm into account”. A review of the military manuals provided in the ICRC Customary Law Study does not include any express examples of mental harm qualifying as civilian harm within the proportionality rule: see Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 2: Practice, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study, Vol. 2), Rule 14, Section A.III, “Military Manuals”, available at: https://ihl-databases.icrc.org/en/customary-ihl/v2. See also S. Knuckey et al., above note 6, pp. 376–377.

20 S. Knuckey et al., above note 6, p. 368; E.-C. Gillard, above note 6, p. 33; M. N. Schmitt and C. E. Highfill, above note 6, pp. 95–96; ICRC, Explosive Weapons with Wide Area Effects: A Deadly Choice in Populated Areas, Geneva, 2022, pp. 96–102, available at: https://shop.icrc.org/explosive-weapons-with-wide-area-effect-a-deadly-choice-in-populated-areas.html. The final report of the ILA Study Group on the Conduct of Hostilities in the 21st Century (ILA Study Group) noted at pp. 28–29 that “[v]arious members … agreed on the importance of this issue, bearing in mind however that mental harm could only be included within the proportionality analysis when it is measurable and when a causal link to a specific attack can be established (war is intrinsically harmful)”: ILA Study Group, “The Conduct of Hostilities and International Humanitarian Law: Challenges of 21st Century Warfare”, International Law Studies, Vol. 93, 2017, p. 360, available at: https://digital-commons.usnwc.edu/ils/vol93/iss1/12/. The Tallinn Manual 2.0 also states that “while the notion of attack encompasses injury and death caused to individuals, the International Group of Experts agreed that it is, in light of the law of armed conflict’s underlying humanitarian purposes, reasonable to extend the definition to serious illness and severe mental suffering that are tantamount to injury”: Tallinn Manual 2.0, above note 11, p. 417.

21 At its heart, the critical feminist phenomenological method concerns intentionality (“the reflection of experiences as we live them”), the epoché (“the suspension of everyday assumptions about phenomena”), phenomenological and eidetic reductions (which access the “essential structures of phenomena”) and transcendental subjectivity (“the appearance of phenomena within intentional relations”): Duane H. Davis, “The Phenomenological Method”, in Gail Weiss, Ann V. Murphy and Gayle Salamon (eds), 50 Concepts for a Critical Phenomenology, Northwestern University Press, Evanston, IL, 2020, pp. 4–5.

22 The ICRC, for example, calls for more gender-sensitive interpretations of the proportionality rule specifically. See Vanessa Murphy, Gendered Impacts of Armed Conflicts and Implications for the Application of International Humanitarian Law, ICRC, Geneva, 2002, pp. 16–17, available at: https://shop.icrc.org/gendered-impact-of-armed-conflict-and-ihl-pdf-en.html.

23 M. J. Jarvis and J. G. Gardam, above note 5, p. 54.

24 Judith G. Gardam and Michelle J. Jarvis, Women, Armed Conflict and International Law, Kluwer Law International, The Hague, London and Boston, MA, 2001, p. 385; Fionnuala Ní Aoláin, “Cumulative Civilian Harm in Gaza: A Gendered View”, 25 June 2025, available at: www.justsecurity.org/115407/cumulative-civilian-harm-gaza-gendered-view/.

25 See Judith G. Gardam, “Necessity, Proportionality and the Use of Force”, Modern Law Review, Vol. 69, No. 4, 2006; Judith G. Gardam and Hilary Charlesworth, “Protection of Women in Armed Conflict”, Human Rights Quarterly, Vol. 22, No. 1, 2000, p. 159.

26 Christine M. Chinkin and Mary Kaldor, “Gender and New Wars”, Journal of International Affairs, Vol. 67, No. 1, 2013; V. Murphy, above note 22; Stacey Banwell, Gender and the Violence(s) of War and Armed Conflict, Emerald Publishing, London, 2020.

27 D. F. Tolin and E. B. Foa, above note 14; Mølgaard Christiansen, “Gender- and Sex-Based Contributors to Sex Differences in PTSD”, Current Psychiatry Reports, Vol. 22, No. 4, 2020; R. Kimerling et al., above note 14.

28 This coheres with Robin West’s challenge for feminist scholars to depict phenomenologically women’s gender-specific harm in order to “communicate its magnitude”: Robin West, “The Difference in Women’s Hedonic Lives: A Phenomenological Critique of Feminist Legal Theory”, Wisconsin Women’s Law Journal, Vol. 3, 1987, p. 81.

29 Iris Marion Young, On Female Body Experience: “Throwing Like a Girl” and Other Essays, Oxford University Press, Oxford, 2005.

30 J. Twemlow, C. Turner and A. Swaine, above note 17, p. 37. See also Alia Al-Saji, “Feminist Phenomenology”, in Serene J. Khader, Alison Stone and Ann Garry (eds), The Routledge Companion to Feminist Philosophy, Routledge, New York and London, 2017.

31 J. Twemlow, C. Turner and A. Swaine, above note 17, p. 91.

32 Ibid., p. 89.

33 Ibid., p. 91.

34 Ibid.

35 Ibid., citing G. Weiss, A. V. Murphy and G. Salamon (eds), above note 21. Note how phenomenology is influenced by constructivist theory (contextualized and context-specific), particularly social constructivism and post-structuralism: see Anna Antipina, “Constructivist Perspectives of Phenomenology”, Advances in Social Science, Education and Humanities Research, Vol. 356, 2019.

36 Nathalie E. Williams, Dirgha Ghirmire and Karen A. Snedker, “Fear of Violence during Armed Conflict: Social Roles and Responsibilities as Determinants of Fear”, Social Sciences Research, Vol. 71, 2018.

37 Michael Christopher, “A Broader View of Trauma: A Biopsychosocial-Evolutionary View of the Role of the Traumatic Stress Response in the Emergence of Pathology and/or Growth”, Clinical Psychology Review, Vol. 24, No. 1, 2004; Megan Gunnar and Karena Quevedo, “The Neurobiology of Stress and Development”, Annual Review of Psychology, Vol. 58, 2007; Finola Ferry et al., Trauma, Health and Conflict in Northern Ireland: A Study of the Epidemiology of Trauma Related Disorders and Qualitative Investigation of the Impact of Trauma on the Individual, University of Ulster, Derry, 2008; Kenneth E. Miller and Andrew Rasmussen, “War Exposure, Daily Stressors, and Mental Health in Conflict and Post-Conflict Settings: Bridging the Divide Between Trauma-Focused and Psychosocial Frameworks”, Social Science and Medicine, Vol. 70, No. 1, 2010.

38 N.E. Williams, D. Ghirmire and K. A. Snedker, above note 36.

39 Martin Killias and Christian Clerici, “Different Measures of Vulnerability in Their Relation to Different Dimensions of Fear of Crime”, British Journal of Criminology, Vol. 40, No. 3, 2000; Christina Pantazis, “‘Fear of Crime’, Vulnerability and Poverty”, British Journal of Criminology, Vol. 40, No. 3, 2000; Jonathan Jackson, “Experience and Expression: Social and Cultural Significance in the Fear of Crime”, British Journal of Criminology, Vol. 44, No. 6, 2004.

40 D. M. Christiansen, above note 14. These reflections are based on Bem’s gender schema theory: see Sandra L. Bem, “Gender Schema Theory: A Cognitive Account of Sex Typing”, Psychological Review, Vol. 88, No. 4, 1981. Note that the biological mechanisms underlying PTSD are beyond the scope of this study. Christiansen and Elklit reflect that it is difficult to determine whether sex differences in PTSD may be attributed to sex or gender-based theories; they consider that gender differences likely “build on pre-existing sex differences related to differences in brain structure and functioning, physiological response to stress, and the influence of sex hormones on the different areas of human functioning. In contrast, the extent to which sex differences come to affect the actual behaviour of males and females may be affected by cultural factors, such as gender role expectancies, which can explain why the extent of sex differences in PTSD appear to vary between cultures.” D. Christiansen and A. Elklit, above note 14, p. 136.

41 Derrick Silove et al., “Effects of Recurrent Violence on Post-Traumatic Stress Disorder and Severe Distress in Conflict-Affected Timor-Leste: A 6-Year Longitudinal Study”, Lancet Global Health, Vol. 2, No. 5, 2014; Lawrence Rugema et al., “Traumatic Episodes and Mental Health Effects in Young Men and Women in Rwanda, 17 Years After the Genocide”, BMJ Open Access, 2015; N. E. Williams, D. Ghirmire and K. A. Snedker, above note 36; Fiona Charlson et al., “New WHO Prevalence Estimates of Mental Disorders in Conflict Settings: A Systemic Review and Meta-Analysis”, The Lancet, Vol. 394, No. 10194, 2019, p. 245.

42 N. E. Williams, D. Ghirmire and K. A. Snedker, above note 36.

43 Ibid.

44 Ibid.

45 Christine Valdez and Michelle Lilly, “Biological Sex, Gender Roles and Criterion A2: Rethinking the ‘Gender’ Gap in PTSD”, Psychological Trauma: Theory, Research, Practice, and Policy, Vol. 6, No. 1, 2013.

46 Fionnuala Ní Aoláin, “Exploring a Feminist Theory of Harm in the Context of Conflicted and Post-Conflict Societies”, Queens Law Journal, Vol. 35, 2009, p. 223.

47 Ibid., p. 224.

48 Helen Durham and Laura Green, “Contemporary Armed Conflict and Gender”, in Indira Rosenthal, Valerie Oosterveld and Susana Sácouto (eds), Gender and International Criminal Law, Oxford University Press, Oxford, 2020, p. 373.

49 Ibid.

50 Note that this may also be argued for men in more traditional societies, who have a protection and “providing” responsibility for their families, tribe and clan. Men can have altruistic fear for others (intersecting with the powerful emotion of shame), and may build masculine identity in terms of discourses of protection and control. Altruistic fear is connected to identities of self and placement in the world: see Loretta Trickett, “‘Don’t Look Now’ – Masculinity, Altruistic Fear and the Spectre of Self: When, Why and How Men Fear for Others”, SOLON Crimes and Misdemeanours, Vol. 3, No. 1, 2009.

51 Ibid., p. 235.

52 Ibid., p. 237.

53 Mahmoud Cherif Bassiouni, “International Recognition of Victims’ Rights”, Human Rights Law Review, Vol. 6, No. 2, 2006, pp. 223–226, 255–258, 265–267; Ruth Rubio-Marin, Clara Sandoval and Catalina Dfaz, “Repairing Family Members: Gross Human Rights Violations and Communities of Harm”, in Ruth Rubio-Marin (ed.), The Gender of Reparations: Unsettling Sexual Hierarchies while Redressing Human Rights Violations, International Centre for Transitional Justice and Cambridge University Press, Cambridge, 2009, p. 220; Shuichi Furuya, “The Right to Reparation for Victims of Armed Conflict”, in Cristián Correa, Shuichi Furuya and Clara Sandoval, Reparations for Victims of Armed Conflict, Cambridge University Press, Cambridge, 2020, pp. 59–62.

54 R. Rubio-Marin, C. Sandoval and C. Diaz, above note 53, pp. 215–216.

55 Ibid., pp. 216, 286–287.

56 Fran H. Norris, Julia L. Perilla, Gladys E. Ibaňez and Arthur D. Murphy, “Sex Difference in Symptoms of Posttraumatic Stress: Does Culture Play a Role?”, Journal of Traumatic Stress, Vol. 14, No. 1, 2001, p. 23. Data in this study was collated six months after Hurricanes Paula and Andrew. While the hurricanes were experienced during peacetime, they were highly stress-inducing events. Note also how pre-existing structural inequities are exacerbated in armed conflict situations: see Women, Peace and Security: Study Submitted by the Secretary General Pursuant to Security Council Resolution 1325, ST/DESA/DAW(02)/W872, 2002, para. 6.

57 F. H. Norris et al., above note 56, p. 24.

58 Emilia Zamora-Moncayo, Rochelle A. Burgess, Laura Fonseca, Mónica González-Gort and Ritsuko Kakuma, “Gender, Mental Harm and Resilience in Armed Conflict: Listening to Life Stories of Internally Displaced Women in Colombia”, BMJ Global Health, Vol. 6, No. 10, 2021, p. 1.

59 F. Ní Aoláin, above note 46.

60 Ibid.

61 Freya Smith, Expanding on the Gendered Continuum of Violence: Do Gender Norms in Peacetime Play a Role in Exacerbating Armed Conflict and Violence against Women during Armed Conflict?, Global Campus of Human Rights, Venice, 2021.

62 C. Querton, above note 16, p. 55.

63 F. H. Norris et al., above note 56; Fran H. Norris, Jennifer D. Foster and Deborah L. Weisshaar, “The Epidemiology of Gender Differences in PTSD across Developmental, Societal, and Research Contexts”, in Rachel Kimerling, Paige Ouimette and Jessica Wolfe (eds), Gender and PTSD, Guilford Press, New York, 2002.

64 C. Querton, above note 16, p. 57.

65 This is an area that would benefit from detailed study.

66 F. Ní Aoláin, above note 46.

67 M. Bovey et al., above note 1.

68 Ibid.

69 J. Twemlow, C. Turner and A. Swaine, above note 17, p. 111.

70 Hille Koskela, Fear, Control and Space, University of Helsinki Press, Helsinki, 1999, p. 1.

71 Gardam and Charlesworth explain how armed conflict exacerbates social inequalities that exist and makes participants more vulnerable when conflict breaks: J. G. Gardam and H. Charlesworth, above note 25, p. 150. See also V. Murphy, above note 22.

72 C. Querton, above note 16, p. 68. There are overwhelming examples of “rape, sexual slavery, forced prostitution, forced impregnation, forced termination pregnancy, forced sterilization, sexual mutilation, sexual humiliation and numerous other illegal acts during time of armed conflict”: Helen Durham and Katie O’Byrne, “The Dialogue of Difference: Gender Perspectives on International Humanitarian Law”, International Review of the Red Cross, Vol. 92, No. 877, 2010. Note, however, that such crimes vary across conflict settings.

73 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), Art. 12; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), Art. 12; Geneva Convention (III) relative to the Treatment of Prisoners of War of 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (GC III), Art. 16. According to the ICRC Commentary on GC III, although not expressly listed as a prohibited ground, sex is included amongst a non-exhaustive list of grounds: ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 2nd ed., Geneva, 2020 (ICRC Commentary on GC III), para. 1770. See also Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Arts 13, 27. According to the ICRC Commentary on GC IV, while sex is not an express ground, it was anticipated by the drafters that the prohibition would evolve, and they chose “a sufficiently open formulation that could accommodate additional grounds”: ICRC, Commentary on the Fourth Geneva Convention: Convention (IV) relative to the Protection of Civilian Persons in Time of War, 2nd ed., Geneva, 2025 (ICRC Commentary on GC IV), para. 1557. And see AP I, Arts 9, 75; AP II, Art. 2.

74 Aaron X. Fellmeth, “Questioning Civilian Immunity”, Texas International Law Journal, Vol. 43, 2008, p. 477, cited in Valerie Oosterveld, “Feminist Debates on Civilian Women and International Humanitarian Law”, Windsor Yearbook of Access to Justice, Vol. 27, No. 2, 2009, p. 389.

75 J. G. Gardam and M. J. Jarvis, above note 24, p. 93.

76 Judith G. Gardam, “Women and Armed Conflict: The Response of International Humanitarian Law”, in Helen Durham and Tracey Gurd (eds), Listening to the Silences: Women and War, Martinus Nijhoff, The Hague, 2005, p. 120.

77 Patricia Viseur Sellers, “Women, Armed Conflict and International Law”, Leiden Journal of International Law, Vol. 15, No. 2, 2002, p. 449.

78 Ibid.

79 Geoffrey Best, Humanity in Warfare, Columbia University Press, New York, 1980, p. 147.

80 J. G. Gardam and H. Charlesworth, above note 25, p. 159. See also Louise Doswald-Beck, Human Rights in Times of Conflict and Terrorism, Oxford University Press, Oxford, 2011, p. 502; J. G. Gardam and M. J. Jarvis, above note 24, pp. 112–122. Note that while Article 27(2) of GC IV depicts women in relation to others, many other rules do not. See Catherine O’Rourke, “Geneva Convention III Commentary: What Significance for Women’s Rights?”, Just Security, 21 October 2020, available at: www.justsecurity.org/72958/geneva-convention-III-commentary-what-significance-for-womens-rights; Heleen Hiemstra and Vanessa Murphy, “GC III Commentary: I’m a Woman and a POW in a Pandemic. What Does the Third Geneva Convention Mean for Me?”, Humanitarian Law and Policy Blog, 8 December 2020, available at: https://blogs.icrc.org/law-and-policy/2020/12/08/gciii-commentary-woman-pow-third-geneva-convention/.

81 C. M. Chinkin and M. Kaldor, above note 26, pp. 167–187.

82 Jill Steans, Gender and International Relations, Polity Press, Cambridge, 1998, p. 93. Ann Tickner explains how the masculinity of war that underpins IHL perpetuates “[t]he myth that certain people (usually gendered feminine) are being protected by others (always gendered masculine). Consistent with the prioritizing of the security of combatants, this protector/protected relationship is one of inequality: those who are protected lack agency or the ability to provide for their own protection.” Ann Tickner, “Feminist Approaches to Issues of War and Peace”, in Dorinda Dallmeyer (ed.), Reconceiving Reality: Women and International Law, Studies in Transnational Legal Policy, Vol. 25, American Society of International Law, Washington, DC, 1993, p. 271. See also Judith Stiehm, “The Protected, the Protector, the Defender”, Women’s Studies International Forum, Vol. 5, No. 3–4, 1982, p. 367.

83 C. M. Chinkin and M. Kaldor, above note 26, p. 168. Jarvis and Gardam helpfully explain that international criminal law practice “has tended to perpetuate restrictive stereotypes of females as weak, passive actors who are primarily visible as mothers and sexual violence victims – stereotypes that are also embedded in the IHL framework”: M. J. Jarvis and J. G. Gardam, above note 5, p. 73.

84 Martha Thompson, “Women, Gender, and Conflict: Making the Connections”, Development in Practice, Vol. 16, No. 3–4, 2006, pp. 342–343.

85 J. G. Gardam and M. J. Jarvis, above note 24, pp. 93, 97. See also UN Women, Preventing Conflict, Transforming Justice, Securing the Peace: A Global Study on the Implementation of United Nations Security Council Resolution 1325, 2015, available at: www.unwomen.org/en/digital-library/publications/2015/10/global-study-on-the-implementation-of-united-nations-security-council-resolution-1325.

86 J. G. Gardam and M. J. Jarvis, above note 24, pp. 93, 97.

87 Griffen Ferry, “Oppression through ‘Protection’: A Survey of Femininity in Foundational Humanitarian Law Texts”, Minnesota Journal of Law and Inequality, Vol. 35, No. 1, 2017, p. 70.

88 Article 3 common to the four Geneva Conventions (common Article 3); AP I, Arts 75(1), 76(1). Article 75(1) of AP I provides for humane treatment “without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria”, and Article 76(1) provides that “[w]omen shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault”.

89 See Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study, Vol. 1), Rule 88, available at: https://ihl-databases.icrc.org/en/customary-ihl/v1. Rule 88 prohibits “adverse distinction in the application of international humanitarian law based on race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria”, as contained in common Article 3, Article 16 of GC III and Article 13 of GC IV. For examples of positive State practice, see Kristina Lindvall, Vanessa Murphy and Paula Iwanoska, “Applying IHL with a Gender Perspective in the Planning and Conduct of Military Operations”, Humanitarian Law and Policy Blog, 24 October 2024, available at: https://blogs.icrc.org/law-and-policy/2024/10/24/applying-ihl-with-a-gender-perspective-in-the-planning-and-conduct-of-military-operations/.

90 ICRC, “Pledge Report: Considering Different Impacts on Diverse Women, Men, Girls and Boys when Applying and Implementing IHL”, 2 July 2024, available at: https://rcrcconference.org/pledge-report/pledge-report-considering-different-impacts-on-diverse-women-men-girls-and-boys-when-applying-and-implementing-ihl/. This report states: “Alongside the actions undertaken for this pledge that are detailed below, the ICRC has continued to incorporate a gender perspective into its approach to updating the Commentaries to the Geneva Conventions – ensuring that the articles of the Geneva Conventions are interpreted without discrimination based on gender.” The ICRC report Gendered Impacts of Armed Conflicts and Implications for the Application of International Humanitarian Law, above note 22, states at p. 33 that “[t]he ICRC has undertaken work to update discriminatory interpretations of IHL relevant to women and girls in armed conflict, notably through the project to update the commentaries to the Geneva Conventions and their Additional Protocols”. Murphy and Cameron state that the ICRC’s updated Commentaries address the gender bias of the former Commentaries, addressing “the specific risk of discrimination facing women”: Vanessa Murphy and Lindsey Cameron, “Gender Bias and IHL: Is Human Rights Law the Answer?”, Japanese Yearbook of International Law, Vol. 66, 2023, paras 116–119. For instance, in relation to the principle of adverse distinction, the 2025 ICRC Commentary on GC IV explicitly clarifies that the words “any other similar criteria” in common Article 3 can include “gender, ethnicity, disability, gender identity, sexual orientation, caste, level of education and family connections”: ICRC Commentary on GC IV, above note 73, para. 640. Further, when recording that humane treatment needs to be context-specific, taking into account both objective and subjective elements, gender, gender identity and sexual orientation are now expressly listed as elements to consider. Similarly, the 2025 Commentary indicates that “women and men, girls and boys, persons with disabilities, older persons and persons of diverse sexual orientation and gender identity are affected by armed conflict and deprivation of liberty in different ways”: ibid., para. 627.

91 J. G. Gardam and M. J. Jarvis, above note 24, p. 93.

92 Nivedita Raju and Laura Bruun, Integrating Gender Perspectives into International Humanitarian Law, SIPRI Insights on Peace and Security, No. 2023/08, August 2023, p. 11. E.-C. Gillard, above note 6, p. 6, explains that “[t]he rule appears on three occasions: first, in Article 51(5)(b), as an example of an attack that is indiscriminate and therefore prohibited; and twice in Article 57 in relation to precautions in attack” (referring to paragraphs (2)(a)(iii) and (2)(b) of Article 57).

93 ICRC Customary Law Study, Vol. 1, above note 89, Rule 14.

94 Rome Statute, above note 9, Art. 8(b)(iv). Note that this applies to international armed conflict only, and where such harm would be “clearly excessive in relation to the concrete and direct overall military advantage anticipated”.

95 When discussing the ambit of the proportionality rule, the Tallinn Manual 2.0 considers that “it is … reasonable to extend the definition to serious illness and severe mental suffering that are tantamount to injury”: Tallinn Manual 2.0, above note 11, p. 417. See also, S. Knuckey et al., above note 6; L. Gisel (ed.), above note 19.

96 S. Knuckey, A. Moorehead, A. McCalley, A. Brown, above note 6.

97 L. Gisel (ed.), above note 19. See also Nele Verlinden, To Feel or Not to Feel? Emotions and International Humanitarian Law, Working Paper No. 178, Leuven Centre for Global Governance Studies, December 2016, p. 15.

98 Vienna Convention on the Law of Treaties, 1155 UNTS 331, 23 May 1969 (entered into force 27 January 1980).

99 Since the mid-twentieth century, the World Health Organization has referred to health as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”: see Constitution of the World Health Organization, 22 July 1946.

100 L. Gisel (ed.), above note 19.

101 Ibid. See also Giulia Bosi, “The Protection of Mental Harm under International Humanitarian Law”, Journal of International Humanitarian Legal Studies, 2025, pp. 21–25, available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5444439.

102 Ibid.

103 Ibid.

104 Ibid.

105 E.-C. Gillard, above note 6, p. 32.

106 E. Lieblich, above note 7, p. 187.

107 See the Expert Meetings convened by Chatham House, the ILA and the ICRC: E.-C. Gillard, above note 6; ILA Study Group, above note 20; V. Murphy, above note 22, Chap. 1.

108 C. Querton, above note 16, p. 65.

109 N. Raju and L. Bruun, above note 92, p. 12. M. J. Jarvis and J. G. Gardam, above note 5, refer to the rule’s “complex, subjective analysis” (p. 54).

110 M. J. Jarvis and J. G. Gardam, above note 5.

111 Carl Bonner-Thompson, Kirsty McGregor and Jason Preston, “Examining the Legacies of Men’s Unwanted Sexual Experiences”, Gender and Society, Vol. 40, No. 1, 2026, p. 128.

112 Ibid.; Elizabeth Freeman, Time Binds: Queer Temporalities, Queer Histories, Duke University Press, Durham, NC, 2010; Pamela Odih, “Gendered Time in the Age of Deconstruction”, Time and Society, Vol. 9, No. 1, 1999.

113 C. Bonner-Thompson, K. McGregor and J. Preston, above note 111, pp. 129–130.

114 Ibid.

115 Article 49(1) of AP I defines attacks as “acts of violence against the adversary, whether in offence or in defence”. Although this article does not mirror customary law, it is a helpful guide: see E.-C. Gillard, above note 6, p. 9.

116 William J. Fenrick, “Applying IHL Targeting Rules to Practical Situations: Proportionality and Military Objectives”, Windsor Yearbook of Access to Justice, Vol. 27, No. 2, 2009, p. 277.

117 Identical declarations upon ratification of AP I were made by Australia, Belgium, Canada, Germany, Italy, the Netherlands, New Zealand, Spain and the United Kingdom: see the ICRC IHL Databases, available at: https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/state-parties https://ihl-databases.icrc.org/en/ihl-treaties/api-1977/state-parties. States not party to AP I made similar statements. See US Department of Defense, Law of War Manual, December 2016, p. 264; Ministry of Foreign Affairs of Israel, Israel’s War with Hizbullah: Preserving Humanitarian Principles while Combating Terrorism, Diplomatic Notes No. 1, April 2007, pp. 13–14, cited in ICRC Customary Law Study, Vol. 2, above note 19, Rule 14, Section A.III, “Military Manuals: Israel”.

118 Michael Bothe, Karl J. Partsch and Waldemar A. Solf (eds), New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, 2nd ed., Martinus Nijhoff, The Hague, 2013, p. 329.

119 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Kupreškić, Case No. IT-95-16-T, Judgment (Trial Chamber), 14 January 2000, para. 526. See also Protection of Civilians in Armed Conflict: Report of the Secretary-General, UN Doc. S/2024/385, 14 May 2024, para. 59.

120 ICTY, Final Report to the Prosecutor of the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 2000, p. 39; Andreas Zimmerman, “The Second Lebanon War”, Max Planck Yearbook of United Nations Law, Vol. 11, 2007, pp. 99, 136–137.

121 F. Ní Aoláin, above note 24.

122 Ibid.

123 Critical legal scholars, philosophers, sociologists, geographers and feminists, amongst others, have questioned the Westernized and masculinized liberal international order and its treatment of time, calling for a disordering of international law, turning away from dominant liberal frames and introducing excluded temporal schemes and relational knowledge. See Michelle Staggs Kelsall, “Disordering International Law”, European Journal of International Law, Vol. 33, No. 3, 2018; Ratna Kapur, Gender, Alterity and Human Rights: Freedom in a Fishbowl, Edward Elgar, Cheltenham, 2018; Shannon O’Lear, “Geographies of Slow Violence: An Introduction”, in Shannon O’Lear (ed.), A Research Agenda for Geographies of Slow Violence, Edward Elgar, Cheltenham, 2002; Sharelle A. Aitchison, “Revisiting the Temporal and Spatial Categorisation of Ongoing Mental Harm/Trauma within the Refugee Definition”, International Journal of Refugee Law, Vol. 38, No. 4, 2026 (forthcoming).

124 Louise Ridden, Non-Violent Encounters, Edinburgh University Press, Edinburgh, 2026, p. 51.

125 E. Lieblich, above note 7; Timothy L. H. McCormack and Paramdeep B. Mtharu, Expected Civilian Damage and the Proportionality Equation: International Humanitarian Law and Explosive Remnants of War, Asia Pacific Centre for Military Law, 2006, pp. 9–10 (addressing the question in the context of explosive remnants of war); ICTY, Kupreškić, above note 119, para. 526 (resorting to the residual Martens Clause in the context of this question). See also Isabel Robinson and Ellen Nohle, “Proportionality and Precautions in Attack: The Reverberating Effects of Using Explosive Weapons in Populated Areas”, International Review of the Red Cross, Vol. 98, No. 901, 2016, pp. 108–109; Ellen Policinski and Jovana Kuzmanovic, “Protracted Conflicts: The Enduring Legacy of Endless War”, International Review of the Red Cross, Vol. 101, No. 912, 2019, p. 968.

126 I. Robinson and E. Nohle, above note 125, pp. 108–109. Gillard argues that if incidental harm meets the conditions of reasonable foreseeability and causation, it may be considered in proportionality assessments: E.-C. Gillard, above note 6, p. 19. Gillard concludes that “provided that the harm falls into one of the categories identified in Additional Protocol I, the geographic or temporal proximity of the harm to the attack is not determinative”: ibid., p. 18.

127 See L. Gisel (ed.), above note 19; ILA Study Group, above note 20; E.-C. Gillard, above note 6.

128 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, Geneva, September 2024, p. 8, available at: www.icrc.org/en/report/2024-icrc-report-ihl-challenges.

129 “Interview with Eyal Weizman”, International Review of the Red Cross, Vol. 98, No. 901, 2016, p. 23, cited in E. Policinski and J. Kuzmanovic, above note 125, p. 967.

130 Rob Nixon, Slow Violence and the Environmentalism of the Poor, Harvard University Press, Cambridge, MA, 2011, p. 2.

131 This has notably led to scholars in international law more broadly calling for a temporal alignment between the law and experiences of harm. In the context of international criminal law, DeFalco advocates for a “processional turn” in how atrocity crimes such as genocide are understood whereby, rather than “static events”, they are best conceptualized as “complex, multi-faceted, social processes”: Randle C. DeFalco, “Time and Visibility of Slow Atrocity Violence”, International Criminal Law Review, Vol. 21, 2021, p. 908. Rosenberg also convincingly argues that genocide is a process, not an event: Sheri Rosenberg, “Genocide is a Process, Not an Event”, Genocide Studies and Prevention, Vol. 7, No. 1, 2012, p. 16; see also Benjamin Meiches, “Genocide and the Brain: Neuroscience, Mental Harm, and International Law”, Journal of Genocide Research, Vol. 24, No. 1, 2022. In the context of refugee law, similar critiques of a narrow, episodic temporal model, aligned to a Westernized international liberal order, have been made: Mathew Scott, Climate Change, Disasters and the Refugee Convention, Cambridge University Press, Cambridge, 2020. There has been a call to bring a multidimensional temporal vision to the study of violence, informed by alternative temporal knowledges and indigenous epistemologies that emphasize relationality and interconnectedness: S. A. Aitchison, above note 123.

132 Daniele Luigi, “Incidentality of the Civilian Harm in International Humanitarian Law and its Contra Legem Antonyms in Recent Discourses on the Laws of War”, Journal of Conflict and Security Law, Vol. 29, No. 1, 2024, p. 28.

133 F. H. Norris et al., above note 56, p. 23.

134 J. Twemlow, C. Turner and A. Swaine, above note 17, p. 90.

135 F. Ní Aoláin, above note 46, p. 242.

136 B. Meiches, above note 131, pp. 135–136.

137 Ion Copoeru, “Event and Structure: A Phenomenological Approach of Irreducible Violence”, Human Studies, Vol. 43, No. 2, 2020, p. 260.

138 The Internal Displacement Monitoring Centre reports that in 2025, of 62.2 million displaced persons, 32.3 million were displaced due to conflicts and violence, with 29.9 million displaced owing to disasters. See Internal Displacement Monitoring Centre, Global Report on Internal Displacement, 2026.

139 N. Raju and L. Bruun, above note 92, p. 12.

140 ICRC, International Expert Meeting Report: The Principle of Proportionality, 3 September 2018, p. 41.

141 H. Durham and L. Green, above note 48, p. 375.

142 ICRC, Urban Services during Protracted Armed Conflict: A Call for a Better Approach to Assisting Affected People, Geneva, 2015, available at: www.icrc.org/sites/default/files/topic/file_plus_list/4249_urban_services_during_protracted_armed_conflict.pdf.

143 E. Policinski and J. Kuzmanovic, above note 125, p. 965.

144 NATO Joint Targeting Doctrine, above note 11, Chap. 1, Section VII, § 1.7(i).

145 Ibid.

146 Ibid.

147 Ibid.

148 E.-C. Gillard, above note 6, paras 115–116.

149 S. Knuckey et al., above note 6, pp. 401–403.

150 M. Bovey et al., above note 1.

151 F. Ní Aoláin, above note 46.

152 The authors refer to examples such as the US war in Vietnam, where the volume of casualties influenced the United States’ decision to retreat, and Israel’s invasion of Lebanon between 1982 and 2000, stating that Israeli military casualties and the suffering of Lebanese civilians influenced Israel’s retreat, amongst other examples. Noam Lubell and Amichai Cohen, “Strategic Proportionality: Limitations on the Use of Force in Modern Armed Conflicts”, International Law Studies, Vol. 96, 2020, pp. 187–188.

153 Ibid., p. 162.

154 Francisco Suárez, “Disputation XIII: On War”, in Francisco Suárez, Selections from Three Works, ed. Thomas Pink, Liberty Fund, 2015, p. 1610, cited in N. Lubell and A. Cohen, above note 152.

155 Ibid.

156 N. Lubell and A. Cohen, above note 152, p. 181.

157 Ibid., p. 192. Lubell and Cohen highlight how, during the NATO intervention in Kosovo and the First Gulf War, the likelihood of more civilian casualties was central to discussions of military strategy: ibid., p. 193.

158 Cordula Droege and Eirini Giorgou, “How International Humanitarian Law Develops”, International Review of the Red Cross, Vol. 104, No. 920–921, 2022, p. 1822.

159 Other reasons include the reality that mental harm “does not result in immediate clips of carnage uploaded to YouTube”: E. Lieblich, above note 7, p. 215. According to Moffett and Narayan, international law “reifies certain harms as amounting to international crimes of jus cogens and episodic deviations, while sidelining the mundane or banal daily and continuing violations that cause a ‘slow death’ to many civilians in conflict”: Luke Moffett and Nikhil Narayan, “Provisional Justice in Protracted Conflicts: The Place of Temporality in Bridging the International Humanitarian Law and Transitional Justice Divide”, International Review of the Red Cross, Vol. 106, No. 927, 2024, p. 1238. Other contributing reasons may include the under-theorizing of harm in IHL in general (see Joanne Conaghan, “Law, Harm and Redress: A Feminist Perspective”, Legal Studies, Vol. 22, No. 3, 2002, p. 321) and the fact that IHL is arguably out of step with contemporary developments in neuroscience which a dynamic, purposive interpretation of the law should accommodate. As reflected in other specialized sub-fields of international law, treaty interpretation has a temporal dimension which is encapsulated in the “living instrument” doctrine, founded on “an evolutionary approach that is reflective of and responsive to changed conditions, understandings and standards”; Lutz Oette, “Conceptualization: Understanding Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, in Lutz Oette, The Transformation of the Prohibition of Torture in International Law, Oxford University Press, Oxford, 2024, p. 54. This has been depicted by Letsas as “the moral reading of rights”: George Letsas, “The ECHR as a Living Instrument: Its Meaning and Legitimacy”, in Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe: The European Court of Human Rights in a National, European and Global Context, Cambridge University Press, Cambridge, 2013, p. 135. Other areas of international law, including international human rights law and international criminal law, are expanding to include developments in neuroscience, for instance, in assessing reparations and which include the temporal issue of intergenerational harm: see Lidewyde Berckmoes, “In the Aftermath of Atrocities: Research on the Intergenerational Transmission of Trauma and Violence”, in Barbora Holá, Hollie Nyseth Nzitatira and Maartje Weerdesteijn, The Oxford Handbook of Atrocity Crimes, Oxford University Press, Oxford, 2022; Megumi Ochi, “Reparations to Future Generation before the ICC: Intergenerational Justice Accounts”, Journal of International Criminal Justice, Vol. 23, No. 2, 2025, pp. 295–300.

160 L. Moffett and N. Narayan, above note 159.

161 C. O’Rourke, above note 80. See also F. Ní Aoláin, above note 46, p. 234: the law fails to “fully capture the spectrum of harms that women themselves identify as significant”.

162 According to Mazel, reparative reading concerns “the act of reading texts and semiotic practices in terms of their empowering and productive capacities, rather than for their deficient or problematic elements”: Odette Mazel, “Queer Jurisprudence: Reparative Practices in international Law”, AJIL Unbound, Vol. 116, 2022, p. 10. For guidance on looking at oppressive frameworks reparatively, see Janet Halley, “Paranoia, Feminism, Law: Reflections on the Possibilities for Queer Legal Studies”, in Elizabeth S. Anker and Bernadette Meyler (eds), New Directions in Law and Literature, Oxford University Press, Oxford, 2011. See also Irene Manganini, “Refugee Law between Resistance and Compliance: A Reparative Reading of a Classic Feminist Struggle”, Refugee Law Initiative Blog, 15 October 2024, available at: https://rli.blogs.sas.ac.uk/2024/10/15/refugee-law-between-resistance-and-compliance-a-reparative-reading-of-a-classic-feminist-struggle/. Note that broadening the proportionality rule to encompass mental harm would benefit civilians generally, not solely women and/or girls.

163 Lieblich explains that while the overarching aim of IHL is to protect the person from physical and mental harm, recognition of mental harm within the ambit of the proportionality rule would enable the discipline to “maintain integrity as a legal body”: E. Lieblich, above note 7, p. 189.

164 There are “conceptual parallels” between IHL and other areas such as international human rights law, international criminal law, refugee law and complementary protection law (which precludes the removal of individuals who face a real risk of being arbitrarily derived of life or subjected to torture or cruel, inhuman or degrading treatment or punishment), which seek, inter alia, to enhance the protection of individuals. (For an overview of complementary protection, see Jane McAdam, “Complementary Protection”, in Cathryn Costello, Michelle Foster and Jane McAdam (eds), The Oxford Handbook of International Refugee Law, Oxford University Press, Oxford, 2021.) Oosterveld, for instance, emphasizes that progressive developments in one related field of law should complement and inform the other: Valerie Oosterveld, “Gender at the Intersection of International Refugee Law and International Criminal Law”, Journal of International Criminal Justice, Vol. 12, No. 5, 2014. See also GSDRC Applied Knowledge, International Legal Frameworks for Humanitarian Action, March 2013. As one example, the European Union Qualification Directive provides protection for persons fleeing indiscriminate violence in situations of armed conflict. Article 15(c) of the Directive (adopted in 2004 and revised in 2011) affords complementary protection to those at risk of “serious and individual threats to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict”. While threat to “a civilian’s life or person” does not expressly include mental harm, in the United Kingdom the threat to a civilian’s person has been found to encompass mental harm; the UK Upper Tribunal held in HM and Others (Article 15(c)) Iraq CG [2012] UKUT 409 (IAC), at paras 42 and 48, that the risk envisaged by Article 15(c) “is most likely to result from indiscriminate bombings or shootings” and is “not limited to physical harm and can include mental harm”. IHL can usefully stay abreast of these developments.