Infant Mortality and the Law of War: Accounting for War’s Impact on the Most Vulnerable

The war in Ukraine is now well over a year old. The conflict painfully reminds us of the brutal human toll war exacts on civilians. Estimates of the numbers of civilians killed and injured vary widely. The UN Office of The High Commissioner for Human Rights (OHCHR) has recorded 8,574 civilians killed and a further 14,441 injured from the beginning of the most recent phase of the war on 24 February 2022 to 23 April 2023. For their part, the National Police of Ukraine have documented almost twice as many deaths with 15,502 civilians killed between 24 February 2022 and 17 January 2023. Meanwhile, as of mid-March 2023, the World Health Organization (WHO) surveillance system for attacks on civilian medical facilities recorded 859 attacks on healthcare in Ukraine.

On 9 March 2022, early in the war, a Russian missile attack on a civilian medical facility destroyed Maternity Hospital No. 3 in the besieged city of Mariupol. According to Ukrainian President Volodymyr Zelensky, “Women, newborns, and medical staff were killed.” Eight days later, in a statement to the United Nations Security Council, Dr. Tedros Adhanom Ghebreyesus, Director General of the World Health Organization (WHO), warned that the “widespread destruction of infrastructure, including health facilities,” would lead to a “severe disruption to health services and access to basic commodities.”

While nearly every segment of the civilian population has suffered in this war and others, the plight of infants both during and in the aftermath of armed conflict is particularly deplorable. Infant mortality rates have proved stunningly sensitive to armed conflict and its aftermath, mainly as an indirect and enduring effect of fighting. In this post, we connect recent research on both the immediate and long-term effects of hostilities on infant mortality to the state of law of war provisions intended to protect this most vulnerable of all civilian populations. We note that although special protections for specific populations have been a regular feature of the modern law of war, the protection offered to infants may not be commensurate with their vulnerability to harm.

War’s Immediate and Cumulative Effects on Health

In research published in the Journal of Human Rights, one of us recently presented evidence that corroborates the WHO Director General’s statements to the UN about both the immediate and long-term consequences of war on human health. The article focuses on the effects on infants—children up to one year of age—a group whom existing reporting and quantitative research have overlooked.

The current literature indicates that wars have both immediate and long-term consequences on human health. Of course, the immediate effects of war, especially those from fighting, raise mortality directly. But war also brings immediate indirect effects including increased exposure to disease, shortages in access to food and medicines, lack of medical care, damage to healthcare facilities, and infrastructure damage restricting travel and access to healthcare. Governments at war also divert limited resources away from healthcare and toward their war efforts.

Beyond immediate effects, it is also clear that delayed and prolonged harm to health features in war-ravaged societies. Cumulative destruction of healthcare institutions, as well as damage to other health-related conditions and systems, such as access to clean water, sanitation services, food production and distribution, and vaccine programs, cause public health outcomes to worsen long after the fighting stops. Existing research indicates that the delayed and long-term effects of conflict may in some cases be more damaging to public health than the immediate effects.

In line with existing research, we also expected that the long-term, cumulative effects, of war would dramatically increase infant mortality rates both during war and after hostilities end. This tragic outcome reinforces the importance of considering the effects on vulnerable populations that are removed in time and space from the actual conduct of hostilities. What was less expected in the research were the results indicating that international armed conflicts were associated with higher infant mortality rates compared to non-international armed conflicts, which we discuss below.

While the ongoing Ukraine conflict indicates that healthcare infrastructure and infant survival are at grave risk during international armed conflict, initial impressions had supposed that non-international armed conflict would feature greater long-term, cumulative harm to infants. Civil wars have been notorious for their brutality. Both government and rebel attacks on healthcare systems have been common, with horrid examples available from Syria, Afghanistan, South Sudan, and the Central African Republic. Governments engaged in non-international armed conflicts have targeted their own hospitals and clinics believing rebel fighters use these facilities as a protective cover or to receive medical assistance. They have also targeted medical facilities to destroy the will of the population to support rebel operations. In Syria, there is evidence that the Assad regime and its Russian backers targeted hospitals in rebel-held areas with air strikes and artillery from late 2017 to early 2018 with reports of dozens of civilians killed including children.

Infant Mortality Rates and Armed Conflict

While general awareness of these shameful episodes and others initially suggested that non-international armed conflicts raised infant mortality at a greater rate than international conflict, the research data did not support this conclusion. Rather, the consequences of both civil and interstate wars are disastrous for infant mortality, with some evidence that the cumulative consequences of international armed conflicts may bring the worst outcomes for infant mortality rates among conflict types.

The article’s research compared infant mortality rates (calculated as the number of deaths per 1000 live births up to 1 year of age) in States at peace with those at war. The research included all independent States between the years 1950-2007 with a population of at least 500,000. The work examined both the immediate and cumulative effects of international and non-international armed conflicts on infant mortality. A threshold for both conflict types, typical in international relations research, is 1000 battle deaths per year.[i] The immediate or “short-term effects” describe the association between a State experiencing a qualifying international or non-international armed conflict each year and the infant mortality rate in the subsequent year. The “cumulative effects” describe infant mortality rates in so-called “war-torn” societies, reflecting the proportion of time a State had spent in war since its independence. The empirical analysis controls for well-known predictors of infant mortality rates such as ratification of the UN Convention on the Rights of the Child, rate of population change, economic development, level of democracy, educational enrollment, and whether the country is in a tropical region. The models also include what is labeled as country and time “fixed effects” which account for individual State factors or individual years not captured in the models that may affect infant mortality rates.

The findings are stark and distressing.

Short-Term Effects

When civil wars occur, they are, on average, associated with a 5.2% infant mortality rate increase in the following year. A representative example comes from Tajikistan in 1992. When a non-international armed conflict broke out, the infant mortality rate jumped from 81.8 to 88.4 per 1,000 live births in the following year, an 8.1% increase. In the case of qualifying international armed conflicts, infant mortality rates worsened by about 10.5%. In specific instances, the jump in infant mortality can be substantially higher. For example, the Iraqi infant mortality rate jumped from 67.4 per 1,000 in 1990 to 99.7 in 1991 with the start of the Gulf War—a 47.9% increase.

Cumulative Effects

The study next compared States at peace with those that spent their entire time as independent States involved in non-international armed conflicts. These war-torn societies, on average, endured an 11.5% increase in infant mortality (from 62.5 per 1000 to 69.7). Infant mortality increases in some non-international armed conflicts have been especially substantial. The Angolan Civil War is a case in point. When the civil war began in 1975, Angola already had a high infant mortality rate of 163.4 deaths per 1,000 live births. By the last year of the Angolan Civil War in 1994, the infant mortality rate had jumped to 200.3 deaths per 1,000 live, a 22.6% increase.

The results of the research also indicate substantial associations between societies experiencing longer periods of interstate war and higher infant mortality rates. When analysis compared States that were not involved in qualifying international armed conflicts with those that spent almost their entire time as independent States involved in these conflicts, there were sizeable increases in infant mortality, on average 100.7% (from 61 to 122.4). The case of Azerbaijan illustrates dramatic increases in infant mortality that resulted from international armed conflict. Azerbaijan gained independence from the Soviet Union in 1991. It was almost immediately embroiled in the Azeri–Armenian War, which ended in 1994. Azerbaijan had an infant mortality rate of 62.6 per 1000 live births in 1991. By the formal end of the war, the rate had increased to 75.3 per 1,000. The negative societal reverberations of the war on infant mortality rates continued, and by 1997 the rate had reached 80.8 per 1,000. In this case, the rate had increased by 29.1%, exerting a large toll on the Azerbaijani population.

The Law of War and Infant Life        

The law of war is widely appreciated as a reactive body of law. It has evolved to better account for and prevent human suffering in war. Its protective regimes reflect recognition of the suffering of groups shown to be especially vulnerable during armed conflict. In the late 19th century, wounded and sick combatants were an early class of beneficiaries of specific protection. A series of 20th-century treaties also recognized the particularly vulnerable condition of prisoners of war, resulting in an elaborate regime of protections applicable from the moment of capture until ultimate release and repatriation. Meanwhile, the post-Second World War revisions to the Geneva Conventions included recognition of the vulnerability of civilians during armed conflict, especially those “in the hands of” their nation’s enemy. By the late 1970s, compelling data on civilian casualties resulting from hostilities prompted the development of greatly refined treaty-based and customary rules for targeting operations including intricate rules based on the principles of military necessity and distinction.

As part of the civilian population, infants enjoy broad law of war protection when under the control of parties to a conflict and from intentional targeting, as well as from incidental effects of such operations. Yet the law of war devotes comparatively few protections to infants as such. Protections specifically designed for infants are most apparent in the Fourth Geneva Convention’s Part II, dedicated to the protection of the “whole of the populations.” While it is generally understood to offer broad protection to all civilians, Part II actually parses out protection quite selectively in many cases, including for infants. Representative obligations include those to respect and protect expectant mothers (Art. 16), civilian hospitals that give care to “maternity cases” (Art. 17), and to permit medical and hospital supplies as well as “essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers, and maternity cases” to pass into areas under their control (Art. 23).

However, other Fourth Geneva Convention, Part II protections are not so clearly framed as obligations. For instance, Article 14 notes that Parties “may” establish hospital and safety zones for, among others, children, expectant mothers, and mothers of children under seven. While Article 17 indicates Parties “shall endeavor to” agree to remove, among others, “children and maternity cases” from besieged or encircled areas. In legal terms, the former amounts to a mere suggestion. Meanwhile, although the latter resorts to the compulsory term “shall,” it merely requires an effort or attempt rather than a protective outcome.

If observed, these protections would no doubt greatly reduce harm to infants during and even following armed conflict. But the Fourth Convention’s regime leaves much to be desired, particularly considering the troubling data described above. Most noteworthy may be that the compulsory aspects of Part II all envision infants remaining in a zone of hostilities. In this sense, they are protections that, on balance, tend to mitigate harm and suffering rather than prevent it. Meanwhile, the Part II provisions that involve or anticipate either cordoning off infants from hostilities or evacuating them from the battlefield entirely, perhaps the more protective approach, are merely advisory or require only that an effort be made.

Additionally, although the data we have shared in this post indicate international armed conflicts represent a greater threat to infant well-being than non-international conflicts, neither the obligatory nor the advisory Part II protections apply in the latter form of conflict where infant mortality is distressingly high. Treaty-based legal protections for infants applicable to non-international armed conflict remain underdeveloped even by comparison to the meager standards of Part II of the Fourth Convention. Nor have States clearly expressed customary law of war protections that fill the legal gap.

Finally, the medical facilities that are so critical to infant survival enjoy strong protection from intentional attack, including a robust warning requirement before an attack in case of their misuse by the parties to the conflict. Incidental destruction of or damage to civilian objects must be considered in attack calculations. And attacks anticipated to cause civilian injuries or damage that is excessive relative to expected military advantage must be canceled. Yet some States’ views on these and other targeting rules expressly exclude indirect harm and mere inconvenience from the scope of damage and effects considered in evaluating attacks (§§ 5.12.1.2 & 5.12.1.3). Second and third-order effects or delayed consequences of attacks, such as those bearing on infant mortality, may escape consideration in attack planning and approval. Attacks producing profoundly harmful effects on infant survival may in many cases pass legal muster under the law of war.

Conclusions

Law of war development has repeatedly adapted to include protections of those that evidence has revealed to be the most vulnerable during war. Considering the deeply troubling data explained in this post and the article on which it is based, there is a need to carefully examine whether the law of war has done all it can to prevent or mitigate infant mortality and suffering. Infants hold legal protections both during and after armed conflict that appear entirely incongruent with their drastic vulnerability to harm. We advocate considering whether current advisory or qualified duties to evacuate or cordon off infants and the persons and facilities on whom they depend could be converted to unequivocal obligations. Equally worthy of study is the extent to which indirect and delayed, though predictable effects on infant survival can be factored into proportionality calculations and precautionary measures in attack. It is well worth States revisiting whether the extant law of war reflects the outer limit of what can be done to protect infants consistently with military necessity and operational reality.

[i] We acknowledge that for purposes of the law of war, international armed conflicts, by contrast with non-international armed conflicts, do not always require a particular violence or intensity threshold be met.

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Dr M. Rodwan Abouharb is an Associate Professor of Political Science at University College London. 

Sean Watts is a Professor in the Department of Law at the United States Military Academy, Co-Director of the Lieber Institute for Law and Land Warfare at West Point, and Co-Editor-in-Chief of Articles of War.

Photo credit: UNICEF Ukraine