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

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.