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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
WELFARE DURING WARFARE:
The Protection of Animals Under International Humanitarian Law
Marianne G. Hyslop
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otākou
October 2022
ACKNOWLEDGEMENTS
To Stephen Smith, my supervisor, for your guidance, support, and willingness to explore this relatively unchartered territory with me;
To Marcelo Rodriguez Ferrere, for your contagious enthusiasm for animal law; helpful commentary, and generosity of time;
To Heidi Bates, for your kindness, encouragement, and immaculate proofreading;
To Michael Evans and Laura Brown, for sharing this journey through law school with me, reminding me to keep things in perspective, and your generous belief in my capabilities;
To my friends at home in Levin and here in Dunedin, for always being in my corner, laughing with me in the fun times and lifting my spirits during the tough ones. Special thanks to Abbey Munro for your company over the home straight;
And finally, to Mum, Dad, Connie, John, and Caroline, for supporting me in everything that I do, the family chat banter and GIFs, and the unconditional love. みんなさいこうだよ!
Ehara taku toa i te toa takitahi, engari he toa takitini
TABLE OF CONTENTS
ABBREVIATIONS
AP II
APs CIL CITES
Domesticated Animals GC I
GC II
GC III
Refers to non-human animals. Animal Welfare Law
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977, 1125 UNTS 3
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977, 1125 UNTS 609
AP I and AP II
Customary International Law
Convention on International Trade in Endangered Species of Wild Fauna and Flora of 3 March 1973, 993 UNTS 243 Refers to companion animals, livestock, and wildlife in captivity.
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12 August 1949, 75 UNTS 31
Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, 75 UNTS 85 Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 75
UNTS 135
GC IV
GCs
1954 Hague Convention
IAC ICJ ICRC
ICRC Environmental Guidelines
ICTY
IHL IHRL NIAC POW
Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 75 UNTS 287GC I, GC II, GC III, and GC IV
Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954 249 UNTS 240 International Armed Conflict
International Court of Justice International Committee of the Red Cross
Guidelines on the Protection of the Natural Environment in Armed Conflict: Rules and Recommendations Relating to the Protection of the Natural Environment under International Humanitarian Law International Criminal Tribunal for the former Yugoslavia
International Humanitarian Law International Human Rights Law Non-International Armed Conflict Prisoner of War
“The question is not, Can they reason? Nor, Can they talk? But, Can they suffer?”
- Jeremy Bentham An Introduction to the Principles of Morals and Legislation (1789)
Introduction
War’s hand of suffering is indiscriminate in whom it touches. The loss of civilian life, the millions internally displaced or forced beyond their own borders to seek refuge, and the physical injuries and mental trauma sustained by combatant and civilian alike are all at the forefront when we turn our minds to the consequences of war.1 Photographs such as “the Napalm girl” grab the world’s attention and emphasise the element of human suffering involved in war.2 Keenly aware are we of the impact of war on people. But amid the chaos and disorder of armed conflict lies an additional category of victims: animals.3 Warfare decimates wildlife populations by causing habitat destruction and increasing animals’ vulnerability to poaching.4 Animals are exploited for military purposes,5 are made the victims of targeted attacks and collateral damage,6 and are abandoned and left to starve on a massive scale.7 The adverse effects of armed conflict on animals are neither few nor trivial, yet these effects – whether unintentionally or purposely disregarded – are largely ignored.
International humanitarian law (IHL) is the branch of law regulating armed conflict.8 IHL seeks not to prohibit war but limit its effects through the balancing of military necessity and the principle of humanity.9 This objective, however, is confined within the boundaries of
1 See, generally, William R Thompson “The consequences of war” (1993) 19 International Interactions 125; Michael J Toole “Displaced Persons and War” in Barry S Levy and Victor W Sidel (eds) War and Public Health (Oxford University Press, New York, 1997) 197; Elaine Hanson and Gwen Vogel “The Impact of War on Civilians” in Lisa Lopez Levers (ed) Trauma Counselling: Theories and Interventions (Springer, New York, 2012) 412; and Vsevolod Rozanov and others “Mental Health Consequences of War Conflicts” in Afzal Javed and Kostas N Fountoulakis (eds) Advances in Psychiatry (Springer, Cham, 2019) 282.
2 Nancy K Miller “The Girl in the Photograph: The Vietnam War and the Making of National Memory” (2004) 24 JAC 261 at 262. Miller describes the photograph as a “central icon” that made Kim Phuc a “symbol of the human capacity for atrocity”.
3 A preliminary point on the terminology to be employed in this paper: the terms “human animal” and “non-human animal” make for a more accurate distinction given the fact that, biologically speaking, humans are also animals. For succinctness’ sake, however, I will refer to “non-human animals” throughout this paper as simply “animals”. 4 Thor Hanson “Biodiversity conservation and armed conflict: a warfare ecology perspective” (2018) 1429 Annals of the New York Academy of Sciences 50 at 54.
5 Colin Slater “Animals in the Military” in Colin G Scanes and Samia R Toukhsati (eds) Animals and Human Society (Academic Press, Cambridge, 2018) 195 at 210.
6 Marco Roscini “Animals and the Law of Armed Conflict” (2017) 47 Israel Yearbook on Human Rights 35 at 36.
7 Anne Peters and Jérôme de Hemptinne “Animals in war: At the vanishing point of international humanitarian law” (2022) 104 Int’l Rev of the Red Cross 1285 at 1286.
8 International humanitarian law (IHL) is also known as jus in bello or the law of armed conflict (LOAC). Although all phrases are commonly used interchangeably, they will not be so in this paper. My argument largely rests on the humanitarian branch of IHL, and I will refer to this area of law using the term that best reflects this.
9 Frits Kalshoven and Liesbeth Zegveld Constraints on the Waging of War: An Introduction to International Humanitarian Law (4th ed, Cambridge University Press, New York, 2011) at 2.
anthropocentrism; consequently, IHL ignores the suffering of animals. Any protection that extends to animals within this legal framework is minimal and indirect; at best, animals are “incidental beneficiaries”.10 This approach fails to recognise animals as sentient beings, a status that is increasingly reflected in both social attitudes and domestic legislation around the world.11
IHL provides a patchwork of protections to various categories of persons and property, yet there exists a gap whereby animals are left defenceless. My dissertation focuses on this gap, my aim being to answer three main questions: What is the reason for this gap’s existence? Why should this gap be filled? And finally, how can this be achieved? The topic of animal welfare and protection under IHL is relatively unchartered territory meaning there remains much to be explored.12 The fundamental premise of this paper is that animals are sentient beings capable of pain and suffering – the concern at hand is for the individual, rather than the species. Accordingly, I take a broad view of the effects of armed conflict on animals and the arguments for their inclusion under IHL, and then narrow my focus to how domesticated animals specifically can be incorporated into the legal framework of IHL.13
Against this background, my dissertation aims to incorporate protection for animals into IHL. To achieve this, my paper is structured into three chapters. In Chapter I, I provide an overview of contemporary IHL, its cardinal principles, and the existing protected categories. I then detail the effects of armed conflict on animals and set forth the anthropocentric nature of IHL to which the exclusion of animals is attributable. In Chapter II, I challenge the status quo by explaining why IHL should deal with the issue of animals in armed conflict. I argue that the failure to provide for the protection and welfare of animals during armed conflict is problematic from both an anthropocentric and zoocentric perspective. In Chapter III, I determine animals should be classified as objects in IHL’s binary system and explore how existing rules of
10 Peters, “At the vanishing point of IHL”, above n 7, at 1287.
11 Paul Waldau “Second Wave Animal Law and the Arrival of Animal Studies” in Deborah Cao and Steven White (eds) Animal Law and Welfare – International Perspectives (Springer, New York, 2016) 11 at 15; Isabelle Veissier and others “European approaches to ensure good animal welfare” (2008) 113 Applied Animal Behaviour Science
279 at 280; and Global Animal Law Association “Database Legislation”
<www.globalanimallaw.org/database/national/index.html>.
12 The forthcoming book Anne Peters, Jérôme de Hemptinne and Robert Kolb (eds) Animals in the International Law of Armed Conflict (Cambridge University Press, Cambridge, 2022) (forthcoming) is the first monograph specifically dedicated to the issue of incorporating direct protection for animals into IHL.
13 For the purposes of this paper, domesticated animals consist of companion animals, livestock, and wildlife in captivity.
protection in the normative framework could be extended to include domesticated animals, alongside a reinterpretation of applicable principles to account for animal sentience. In this Chapter, I also propose the special protection of animal personnel during war; a necessary step that acknowledges and responds to the high level of dependence domesticated animals have on humans.14
Ultimately, I conclude that it is wrong for IHL to ignore the effects of armed conflict on animals. Animals have intrinsic value and inherent vulnerability, and with progress in animal welfare standards around the world, this means that animals should be afforded protection under the legal framework governing armed conflict. IHL seeks to limit the suffering in war and including animals within its scope only strengthens that objective.
14 Clare Palmer “The Moral Relevance of the Distinction Between Domesticated and Wild Animals” in Tom L Beauchamp and R G Frey (eds) The Oxford Handbook of Animal Ethics (Oxford University Press, Oxford, 2011) 701 at 706.
Chapter I: Setting the Scene
My dissertation analyses two ideas that should work together but are currently out of sync: the theoretical legal framework of IHL and the practical reality of animals impacted by warfare. The effects of armed conflict on animals are significant, yet IHL is silent on this issue. In this Chapter, I will provide background knowledge and understanding of IHL and the impact of conflict on animals before discussing why animals should and how they could be incorporated into IHL in Chapters II and III. In Part A, I provide an overview of IHL’s contemporary framework, its fundamental principles, and the categories of persons and property that are currently afforded protection. In Part B, I detail the various ways animals are affected by war, distinguishing between categories of animals used for military purposes, wildlife, and domesticated animals. In Part C, I discuss the reason why animals are not afforded any meaningful protection under IHL, this reason being IHL’s overwhelmingly anthropocentric nature.
A. An overview of international humanitarian law
To incorporate animals into IHL it is necessary to understand how this field of law operates. In this Part, I will outline the existing IHL framework: when and to what parties it applies, who and what it protects, the treaties that the most substantive rules are contained in, and the minimal references made to animals within this field of law. In this Part, I will also provide an overview of the principles underpinning IHL, namely, military necessity, humanity, distinction, and proportionality.
1. The contemporary framework
IHL is the branch of public international law that regulates the conduct of armed conflict.15 IHL applies consistently and equally to all involved parties when armed conflict exists, pursuant to common art 2 to the four Geneva Conventions and irrespective of the legality of the triggering act.16 Armed conflict is not defined by international treaty provisions, but the International
15 Daniel Thürer International Humanitarian Law: Theory, Practice, Context (Martinus Nijhoff Publishers, Leiden, 2011) at 41.
16 Jus ad bellum (‘right to war’), also sometimes called jus contra bellum (‘law against war’), is the area of international law that regulates whether the use of force by a State is permissible. Jus ad bellum, concerned with
Criminal Tribunal for the former Yugoslavia (ICTY) in Tadíc clarified an armed conflict is established “whenever there is resort to armed force between States or protracted armed violence between governmental authorities or between such groups within a State.”17 The term “armed conflict” encompasses both international armed conflicts (IACs) and non-international armed conflicts (NIACs).18 Historically, the distinction between IACs and NIACs was significant, with fewer and more simplified rules applying to NIACs.19 This distinction, however, has become less prominent with the growing acceptance that rules explicitly pertaining to IACs are applicable to NIACs as a matter of customary international law (CIL).20
IHL does not seek to prohibit war nor does it purport to turn it into a “socially acceptable activity”.21 Rather, IHL “provides the yardstick by which to measure the justifiability of acts of war”, thus placing legal restraints on what acts can be committed during armed conflict.22 IHL is specifically designed to alleviate the suffering caused by war and restrict its effects, therefore the primary objective is to protect persons not taking active part in hostilities.23 Included in this category are civilians, aid workers, and soldiers who cease participation in war, such as wounded, sick and shipwrecked combatants, and prisoners of war (POWs).24 IHL achieves this objective predominantly by permitting attacks only against military objectives and prohibiting certain means and methods of warfare.25
the commencement of armed conflict rather than the conduct once a conflict has begun, is independent from IHL. See, Keiichiro Okimoto The Distinction and Relationship between Jus ad Bellum and Jus in Bello (Hart Publishing, Oxford, 2011).
17 Prosecutor v Dusko Tadíc (Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) ICTY Appeals Chamber IT-94-1, 2 October 1995, at [70].
18 Common Article 2 to the four 1949 Geneva Conventions provide that conflicts between two or more High Contracting Parties, that is, States, are characterised as IACs. In comparison, NIACs are conflicts occurring in the territory of one of the High Contracting Parties, between either regular armed forces and dissident armed groups, or dissident armed groups fighting one another, and require evidence of a certain level of intensity of the violence and organisation of the involved parties. See, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 1125 UNTS 609 (entered into force 7 December 1978) (AP II), art 1(1).
19 Sandesh Sivakumaran The Law of Non-International Armed Conflict (Oxford University Press, Oxford, 2012)
at 102. Sivakumaran observes that customary international law (CIL) in relation to the laws of war gives higher regard to opinio juris and for what ought to be the law, in comparison to what the law is. States are more forthcoming in its views regarding the status of the laws of war; in this regard, situations of armed conflict are atypical.
20 At 102.
21 Kalshoven, above n 9, at 2.
22 At 2.
23 International Committee of the Red Cross (ICRC) The Geneva Conventions of 12 August 1949 Preliminary Remarks (ICRC, Geneva, 1981) at 19.
24 At 22.
25 Kalshoven, above n 9, at 38.
The main rules of contemporary IHL are contained in the four Geneva Conventions of 1949 (GCs) and their Additional Protocols (APs). The GCs have been signed by 194 nation states and are thus universally applicable.26 The APs are among the most accepted international treaties, signed by 174 and 169 State parties respectively.27 The GCs provide protection for the wounded and sick in armed forces in the field;28 the wounded, sick and shipwrecked military personnel at sea;29 POWs;30 and civilians.31 AP I applies explicitly to IACs,32 and AP II to NIACs.33
Most animals are victims, rather than participants, of war. The animals who are used for military purposes are not classified as “members of the armed forces” as this title is reserved only for human soldiers despite the fact that many actions performed by these animals are military-like.34 In light of this background, GCs I-III are not applicable and my focus rests on GC IV (the convention relative to the protection of civilian persons in time of war) and AP I (the protocol relating to IACs, bearing in mind these rules are generally accepted to apply in NIACs too). GC IV seeks to alleviate the effects of war on civilians by, inter alia, affording particular protection to especially vulnerable persons, hospitals, and hospital staff,35 creating neutralised zones, requiring free passage of necessities such as medical supplies and food, and providing for evacuation efforts.36 AP I sets out additional protected categories other than persons, including cultural property and places of worship,37 and objects indispensable to the survival of the civilian population.38 More recent developments have seen explicit rules created
26 ICRC “The Geneva Conventions of 1949 and their Additional Protocols” (29 October 2010)
<www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview-geneva- conventions.htm>.
27 Ibid.
28 Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 75 UNTS 31 (entered into force 21 October 1950) (GC I).
29 Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 75 UNTS 85 (entered into force 21 October 1950) (GC II).
30 Geneva Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949 75 UNTS 135 (entered into force 21 October 1950) (GC III).
31 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949 75 UNTS 287 (entered into force 21 October 1950) (GC IV).
32 Protocol Additional to the Geneva Conventions 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 1125 UNTS 3 (entered into force 7 December 1978) (AP I), art 2.
33 AP II, above n 18, art 1(1).
34 Roscini, above n 6, at 46.
35 Above n 31, arts 16, 18, and 20.
36 Articles 15, 23, and 17.
37 Above n 32, art 53.
38 Article 54.
for the protection of the “natural environment”.39 I will refer back to these examples and categories of protection throughout this dissertation.
I note two exceptions to the silence of IHL on animals located under AP I: (1) “livestock” are explicitly included in the list of objects considered indispensable to the survival of the civilian population;40 and (2) “fauna” and “livestock” are referred to in the ICRC Guidelines on the Protection of the Natural Environment in Armed Conflict (ICRC Environmental Guidelines) as a component of the “natural environment”.41 In both instances, however, minimal protection is provided. Firstly, the term “livestock” is inherently restrictive by encompassing only animals used in an agricultural context, and the prohibition to “attack, destroy, remove or render useless” these objects is entwined with the prohibition on the starvation of the civilian population as a method of warfare.42 This protection is not for animals per se.
The second reference to animals under AP I is similarly insufficient. Articles 35(3) and 55 prohibit “long-term, widespread and severe damage” against the natural environment, which includes “fauna” and “livestock” per the ICRC Environmental Guidelines.43 All three elements of “long-term, widespread and severe damage” need to be satisfied before the threshold can be met. What constitutes “long-term, widespread and severe damage” is not clarified in AP I itself, but subsequent interpretation from commentary by the ICRC, various international bodies, and legal academics indicate the threshold to trigger this prohibition is extremely high.44 Articles 35(3) and 55 therefore have “very little scope for application” and fail to effectively protect the wider environment as the focus of the provisions, let alone achieve any meaningful protection for “fauna” or “livestock” as just one component of that environment.45 These two references to animals under the current IHL framework provide only minimal and indirect protection to
39 AP I, above n 32, arts 35(3) and 55.
40 Article 54(2).
41 ICRC “Guidelines on the Protection of the Environment in Armed Conflict: Rules and Recommendations Relating to the Protection of the Natural Environment under International Humanitarian Law, with Commentary” (ICRC, Geneva, 2020) <www.icrc.org/en/document/guidelines-protection-natural-environment-armed-conflict- rules-and-recommendations-relating> at [16].
42 AP I, above n 32, art 54; and Sandra Krähenman “Animals as Specially Protected Objects” in Anne Peters, Jérôme de Hemptinne and Robert Kolb (eds) Animals in the International Law of Armed Conflict (Cambridge University Press, Cambridge, 2022) (forthcoming) 92 at 103.
43 AP I, above n 32, arts 35(3) and 55; and ICRC, “Environmental Guidelines”, above n 38, at [16].
44 Anthony Leibler “Deliberate Wartime Environmental Damage: New Challenges for International Law” (1992) 23 Cal W Int’l LJ 67 at 111. The threshold has been determined as lasting for at least several decades, over an area of several hundred kilometres, and causing death, ill-health or loss of sustenance to thousands of people.
45 Above n 44, at 111.
animals, and are therefore inadequate and do not offer any meaningful value for animals as individual sentient beings.
2. The fundamental principles
Two core principles lie at the heart of IHL: military necessity and humanity. Military necessity allows acts deemed necessary to achieve a legitimate military purpose. This principle acknowledges that an element of suffering is inherent in war and that a state’s freedom of action to “pursue and safeguard vital national interests” should not be restricted.46 It is the principle of military necessity that justifies the divergence from the laws of peacetime that otherwise stipulate the strict protection of life and property.47 However, despite IHL and military necessity positing a “radical exception to the normal moral paradigm”, absolute warfare is not permitted: military necessity must be balanced with the coinciding core principle of humanity.48 In the name of morality and human ideals, humanitarianism imposes restrictions on the means and methods of warfare to moderate the effects of armed conflict.49 While “necessity” acts as a limit in and of itself (by prohibiting acts which are not deemed militarily necessary), the principle of humanity further limits what is permitted through heightening the threshold of the necessity test.50 The principles of military necessity and humanity are antithetical and therefore IHL is comprised of rules that seek to achieve a balance between the two.
This balance is achieved through other guiding principles of IHL, namely, distinction and proportionality. The distinction principle distinguishes between military objectives and civilian objectives whereby only military objectives, defined as objects that contribute to military action and whose destruction gives a military advantage, may be the target of attacks.51 A civilian objective is anything that does not constitute a military objective and cannot be targeted.52 As such, this distinction principle forms the basis of the prohibition of certain weapons that are of “a nature to strike military objectives and civilians or civilian objects
46 Michael N Schmitt “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance” in Essays on Law and War at the Fault Lines (T.M.C. Asser Press, The Hague, 2012) 89 at 92. 47 At 91.
48 Jonathan Crowe and Kylie Weston-Scheuber “The Concept of Armed Conflict” in Principles of International Humanitarian Law (Edward Elgar, Cheltenham, 2013) at 2.
49 Above n 46, at 92.
50 David Luban “Military Necessity and the Cultures of Military Law” (2013) 26 Leiden Journal of Int’l L 315 at 322.
51 AP I, above n 32, art 52(2).
52 Article 52(1).
without distinction”.53 Weapons that cannot satisfy IHL’s principle of distinction and are deemed to be inherently indiscriminate are therefore prohibited.54 Similarly, in respect to the principle of proportionality, while military necessity allows for the incidental loss of civilian life and damage to civilian property, this is constrained by a proportionality assessment that prohibits attacks where the harm caused is “excessive in relation to the concrete and direct military advantage anticipated”.55
The relationship between military necessity and humanity in IHL is both permitting and restricting. For example, the principle of humanity prohibits weapons that cause unnecessary suffering; conversely, the principle of necessity makes lawful the use of weapons that cause “necessary” suffering.56 While illustrating the inherent tension that IHL is built upon, the balance sought is not one of complete equilibrium. IHL has evolved so that humanity is given greater weight than its necessity counterpart, a shift away from the origins of IHL.57 Rules around conduct in war can be traced back to ancient civilisations and religions, demonstrating that conflict has long been subject to principles and customs in some shape or form.58 The earliest official codifications of rules of war in international agreements were the Geneva Convention of 1864 and the treaties that followed the two Hague Peace Conferences in 1899 and 1907. 59 These agreements stipulated the permissible means and methods of warfare, retaliation, and treatment of wounded combatants and POWs.60 It was not until the adoption of GC IV after World War II, however, that there came a shift in focus from the conduct and treatment of those participating in the conflict to improving the conditions for non-participants. AP I and II followed in 1979, these protocols supplementing the GCs and further broadening the scope of protection, moving IHL “steadily in the direction of humanity and away from that of military necessity.”61 Furthermore, the term “international humanitarian law” itself
53 AP I, above n 32, article 51(4)(c).
54 Article 51(4).
55 Article 51(5)(b).
56 Article 35(2).
57 Schmitt, above n 46, at 98.
58 Mohammad Saidul Islam “The Historical Evolution of International Humanitarian Law (IHL) from Earliest Societies to Modern Age” (2018) 9 Beijing L Rev 294 at 295.
59 Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, 22 August 1864 75 UNTS 31 (entered into force 22 June 1865). This was the first official codification, coordinated largely by Henri Dunant following the Battle of Solferino in 1859 who was appalled at the mass casualties and lack of any organised system to treat them. Dunant also founded the ICRC. See, Frederick M Burkle “Revisiting the Battle of Solferino: The Worsening Plight of Civilian Casualties in War and Conflict” (2019) 13 Disaster Medicine and Public Health Preparedness 837. The 1864 GC has been replaced by the GCs of 1949.
60 Schmitt, above n 46, at 100.
61 At 98.
represented a substantive shift that saw the principle of humanity become the “stronger thread” in IHL. 62 I make note of this point now because IHL’s emphasis on humanity becomes important to my argument for animals’ welfare and protection under IHL.
B. Animals in Armed Conflict
In this Part, I shift my focus from IHL toward the second component of my dissertation: the effects of armed conflict on animals. Animal suffering in war is the trigger that gives rise to the need for their protection under IHL. My argument for such protection is therefore contingent on the existence of animal suffering caused by armed conflict. In this Part I will explain the various ways animals are involved in and impacted by war.
1. Animals used for military purposes
Millions of animals have been, and continue to be, exploited for military purposes.63 The types of animals used include dogs, dolphins, sea lions, horses, donkeys, elephants, camels, and birds.64 Just as the species employed are wide-ranging, so too are the purposes for their use. Land animals are used to transport supplies in warzones, locate enemy and ally combatants, and are trained to detect explosives and traps.65 Marine mammals are used for functions such as underwater mine detection, locating and tracking enemy combatants in submarines, and guarding ships and harbours.66 Marine mammals are principally trained for military purposes; for example, the United States Navy have a specific training program for the bottlenose dolphin and the Californian sea lion,67 deploying them in conflicts in Vietnam, Iraq, and along their own coasts.68 In the ongoing Ukraine war today, the Russian military are also using dolphins to defend naval bases.69
62 Amanda Alexander “A Short History of International Humanitarian Law” (2015) 26 EJIL 109 at 114.
63 Elizabeth A Lawrence “Animals in War: History and Implications for the Future” (1991) 4 Anthrozoös 145 at 148.
64 Peters, “At the vanishing point of IHL”, above n 7, at 1286.
65 Ryan Hediger “Animals and War: Introduction” in Animals and War: Studies of Europe and North America
(Brill, Leiden, 2013) 1 at 11.
66 Jérôme de Hemptinne “Challenges Regarding the Protection of Animals During Warfare” in Anne Peters (ed)
Studies in Global Animal Law (Springer, Berlin, 2020) 173 at 174.
67 Naval Information Warfare Center “US Navy Marine Mammal Program” <www.niwcpacific.navy.mil/marine- mammal-program/>.
68 Above n 65, at 7.
69 Rachel Treisman “A Russian naval base is defended by dolphins. It’s not as unusual as it sounds” (29 April 2022) National Public Radio <www.npr.org/2022/04/29/1095549251/russia-dolphins-black-sea-naval-base>.
Animals used in the military play a crucial role and make significant contributions in conflicts yet are largely treated as expendable.70 For example, in the Vietnam War the United States military deployed over 4000 military dogs who were ultimately credited with saving more than 10,000 lives.71 Despite the critical efforts of these animals, however, on withdrawal from South Vietnam the surviving dogs were left behind.72 “Military animals” are active participants in the conduct of hostilities itself (although I note their being so is involuntary in nature due to their innate incapability of volunteering for such a service) and become vulnerable to injury, death, poor welfare and abandonment.73
2. Wildlife in armed conflict
Wildlife are also affected by armed conflict. Eighty per cent of conflicts in the past half-century have occurred in biodiverse hotspots, causing species’ population to deteriorate dramatically.74 Take, for example, the effect of civil war on the Gorongosa National Park in Mozambique: the African buffalo dropped in numbers from 14,000 to 100; the hippo population from 3,500 to 100; and the elephant population from 2,000 to 200.75 Overall, more than ninety per cent of its animals were lost in the years of the civil war.76 As a result of human conflict causing such a rapid decline in the population numbers, war now constitutes the greatest threat to wildlife. 77
Animals play a pivotal role in the formation and maintenance of ecosystems.78 The decimation of wildlife species is problematic because it impacts food chains and the ecological balance of the often already precarious environments they inhabit.79 Certain weapons and intentional environmental damage as a means of warfare destroy the habitats of wildlife, leading indirectly
70 Lawrence, above n 63, at 145.
71 Michael G Lemish War Dogs: A History of Loyalty and Heroism (Potomac Books, Sterling, 1999) 1 at 76.
72 Sarah D Cruse “Military Working Dogs: Classification and Treatment in the US Armed Forces” (2015) 21 Animal L 249 at 257.
73 Roscini, above n 6, at 37.
74 Thor Hanson and others “Warfare in Biodiversity Hotspots” (2009) 23(3) Conservation Biology 578 at 582.
75 ICRC “Natural environment: Neglected victim of armed conflict” (5 June 2019)
<www.icrc.org/en/document/natural-environment-neglected-victim-armed-conflict>.
76 Ibid.
77 Joseph P Dudley and others “Effects of War and Civil Strife on Wildlife and Wildlife Habitats” (2002) 16 Conservation Biology 319 at 320.
78 John P. Grime “Biodiversity and ecosystem function: the debate deepens” (1997) 227 Science 1260 at 1261.
79 At 1263.
and indirectly to their injury and deaths.80 For instance, the deliberate oil spills in the Persian Gulf during the Iraqi occupation in 1991 resulted in thousands of deaths of marine species, fish, and birds.81 Similar effects occurred following the use of Agent Orange in Vietnam by the United States military across rural landscapes; the attempt to defoliate forest cover detrimentally affected the wildlife and livestock in the area through causing mutations and contaminating fresh water supplies.82
Furthermore, military tactics affect wildlife during conflict and in the years following its conclusion.83 For example, mines and explosives resulted in high numbers of gorillas and African elephants being killed long after [the conflict] had ended.84 Considering the present conflict in Ukraine, bombs and water mine explosions have led to the death of thousands of dolphins in the Black Sea.85 The general welfare of marine mammals is further compromised by navigation systems on military vessels that disrupt the echolocation marine species use to feed and navigate.86
Wildlife are also adversely affected by war through incidental consequences such as their increased vulnerability to poaching.87 Particularly in the case of NIACs, combatants poach species to trade and sell their ivory.88 The profits generated are commonly invested back into the conflict itself, allowing belligerents to acquire further weapons and continue the cycle of war.89 While wildlife at risk of illegal poaching usually reside in protected areas, conflict entails those in positions to protect reserves, national parks and sanctuaries are forced to flee and this
80 Anne Peters and Jérôme de Hemptinne “Animals in Wartime: A Legal Research Agenda” in Anne Peters, Jérôme de Hemptinne and Robert Kolb (eds) Animals in the International Law of Armed Conflict (Cambridge University Press, Cambridge, 2022) (forthcoming) 3 at 3.
81 Samira A S Omar and others “The Gulf War Impact on the Terrestrial Environment of Kuwait: An Overview” in Jay E Austin and Carl E Bruch (eds) The Environmental Consequences of War (Cambridge University Press, Cambridge, 2000) 316 at 237.
82 Michael G Palmer “The Case of Agent Orange” (2007) 29 Contemporary Southeast Asia 172 at 178.
83 Kaitlyn M Gaynor and others “War and wildlife: linking armed conflict to conservation” (2016) 14 Frontiers in Ecology and the Environment 533 at 534.
84 At 535.
85 Paulo Pereira and others “Editorial: The Russian-Ukrainian armed conflict impact will push back the sustainable development goals” (2022) 2 Geography and Sustainability (forthcoming).
86 Gaynor, above n 83. See also, Marc Santora “Dolphins Dying in Black Sea, and May Be Casualties of War, Scientists Say” (2 June 2022) The New York Times <www.nytimes.com/2022/06/02/world/europe/dolphins- dying-ukraine-war.html>.
87 Above n 83, at 535.
88 de Hemptinne, “The Protection of Animals During Warfare”, above n 66, at 274.
89 At 274. See also, Bryan Christy “How Killing Elephants Finances Terror in Africa” (12 August 2015) National Geographic <www.nationalgeographic.com/tracking-ivory/article.html>.
leaves wildlife exposed to attacks.90 This occurred in the Democratic Republic of the Congo in the Okapi Reserve where numerous elephants were poached.91 Similarly, in the Rwandan Akagera National Park approximately ninety per cent of the mammals residing at the park were lost during the 1990 war.92 Other animals in the wild are killed simply for entertainment; for example, silver back mountain gorillas were shot dead for “fun” by soldiers in the same Rwandan conflict.93 Both the survival and welfare of wildlife during war is compromised.
3. Domesticated animals in armed conflict
Domesticated animals are among the most helpless victims of armed conflict.94 This category of animals encompasses companion animals, livestock, and wildlife in captivity. With a high level of dependence on humans for their welfare, many of the consequences faced by domesticated animals stems from abandonment by their carers, whereby they become stray animals with little means of feeding themselves unless taken in by shelters that are pushed well beyond their capacity.95 Looking to the current conflict in Ukraine, companion animals are facing devastating consequences. Animal shelters are low on volunteers and overflowing with animals (mainly dogs) to care for.96 This, paired with blocked routes of passage for the likes of food and other necessary supplies, is severely compromising the welfare of these abandoned animals.97 Some fleeing civilians were able to take their companion animals with them and restrictive rules around “animals refugees” have been loosened which is positive;98 however, these animals’ interests are still subjugated to that of their human owners who take them.99 It has also not been uncommon in the past for owners of companion animals to kill their animals pre-emptively before supply shortages become dire; for example, this happened at the
90 Gaynor, above n 83, at 536.
91 At 536.
92 Samuel Kanyamibwa “Impact of war on conservation: Rwandan environment and wildlife in agony” (1998) 7 Biodiversity and Conservation 1399 at 1402.
93 At 1403.
94 Palmer, above n 14, at 706.
95 Saba Pipia “Forgotten Victims of War: Animals and the International Law of Armed Conflict” (2022) 28 Animal L 175 at 198.
96 Adam Rawnsley “Russia’s War is Hell in the Pets of Ukraine and Their Rescuers” (16 March 2022) The Daily Beast <www.thedailybeast.com/russias-war-is-hell-on-the-pets-of-ukraine-and-their-rescuers>.
97 Ibid.
98 International Fund for Animal Welfare “helpful information for people fleeing Ukraine with their pets” (21 April 2022) <www.ifaw.org/news/resources-flee-ukraine-pets>.
99 Manish Pandey “How animals in Ukraine are being rescued during war” (3 March 2022) BBC News
<www.bbc.com/news/newsbeat-60593791>.
beginning of World War II in England resulting in more than 400,000 companion animals being killed.100
Livestock suffer in conflicts too, frequently starved on a massive scale if not pre-emptively killed.101 Armed groups kill livestock belonging to civilian populations on the opposing side for purposes of depriving them of their livelihoods, as occurred in the Kuwait occupation by Iraq where an estimated eighty per cent of livestock were killed.102 In some instances, livestock are targeted for the value they hold to their owners in an economic sense as well as for their “emotional, psychological and cultural significance” too, as was found by the ICTY in Kupreškić in relation to the slaughtering of livestock belonging to Muslim citizens of a village in Bosnia and Herzegovina.103 No consideration is given in conflicts to the animals as individual beings, only to their owners.
Wildlife in captivity also suffer during war. Confined in enclosures, sometimes abandoned by their carers and left to the mercy of armed groups, wildlife in captivity are often arbitrarily injured and killed by soldiers or left to starve with no means of self-preservation. By the end of World War II, the Berlin Zoo had lost over ninety per cent of its animals through a combination of starvation, shootings, and bombings.104 More recently, the zoo animals in Kuwait, Baghdad, and Kabul all suffered during various conflicts.105 During the Iraqi occupation of Kuwait, the zoo staff were forced to flee leaving hundreds of animals defenceless, many ending up killed or injured by bullet wounds.106 In Baghdad, the zoo was looted and the animals were either shot or left to starve, and similar events transpired at the Kabul Zoo where staff were also forcibly dismissed.107 Similarly, the Gaza Zoo, originally home to more than 400 animals, had only ten surviving animals following attacks by Israel; those not killed by bombs or shot wantonly by soldiers with rocket grenades were instead
100 Hilda Kean “September 1939: No Human Panic. 400,000 Animals Killed in Four Days” in The Great Cat and Dog Massacre: The Real Story of World War II’s Unknown Tragedy (The University of Chicago Press, Chicago, 2017) 47 at 48.
101 Peters, “A Legal Research Agenda”, above n 80, at 4.
102 At 4.
103 Prosecutor v Zoran Kupreškić and others ICTY Trial Chamber IT-95-16-T, 14 January 2000, at [336].
104 John M Kinder “Zoo Animals and Modern War: Captive Casualties, Patriotic Citizens, and Good Soldiers” in Ryan Hediger (ed) Animals and War: Studies of Europe and North America (Brill, Leiden, 2013) 45 at 46.
105 Mayumi Itoh “Introduction: Disposal of Dangerous Animals as Japan’s National Policy” in Japanese Wartime Policy (Springer, New York, 2010) 1 at 2.
106 At 3.
107 At 4.
starved to death.108 Zoo animals in Ukraine have not been immune to the effects of the recent Russian invasion: zoos have been hit by missiles, animals have been caught in the crossfire between soldiers, and others have been affected by the shortage of supplies and distress from surrounding warfare.109 Opportunities to evacuate animals to safety are slim due to blockades and ongoing shelling which act only to exacerbate the inherent difficulty in transporting zoo animals.110
All types of animals suffer during war. Animals’ involvement in armed conflict is attributable to nothing more than the drawing of the short straw insofar as their home falls within the region of conflict. In Part A, I highlighted the primary objective of IHL is to alleviate suffering caused by armed conflict and in this Part, I have detailed the extensive suffering of animals in armed conflict. Considering this objective, the absence of any protection pertaining to animals in IHL appears contradictory. In Part C, I explain why animal suffering is not within the scope of IHL’s protection.
C. The Anthropocentric Nature of International Humanitarian Law
If we are to understand IHL as simply a body of law that strives to mitigate the effects and suffering of armed conflict, and if we accept that animals suffer in armed conflict, then it logically follows that the minimal protection afforded to animals under IHL is problematic. The reason animals are given such scant consideration in this legal framework, however, is suggested in the term IHL itself: the focus of humanitarian law is on humans.111 As illustrated in the overview of IHL in Part A, the rules of war aim to protect “persons” whether civilian or combatant.112 A closer glimpse at the categories afforded protection other than persons also show a permeation of anthropocentrism. The rules including “livestock” in its scope is expanded as such only due to their status as “indispensable to the survival of the civilian
108 Sarah Salih “The animal you see: Why look at animals in Gaza?” (2014) 16 Interventions 299 at 302.
109 Deepak Rawtani and others “Environmental damages due to war in Ukraine: A perspective” (2022) 850 Science of the Total Environment 1 at 4; Tsavo Trust “War in Ukraine: what is happening to the animals in Ukraine’s zoos?” (22 April 2022) <tsavotrust.org/war-in-ukraine-what-is-happening-to-the-animals-in-ukraines-zoos/>.
110 Darryl Coote “Officials rush to evacuate large predators from besieged Kharkiv zoo” (12 April 2022) United Press International <www.upi.com/Top_News/World-News/2022/04/12/ukraine-ukraine-zoo-animals- evacuation/1121649744467/>.
111 Dieter Fleck The Handbook of International Humanitarian Law (4th ed, Oxford University Press, Oxford, 2021) at 21.
112 At 23.
population”.113 The 1954 Hague Convention regarding cultural property was created in recognition of its preservation being of “great importance for all peoples”,114 a reasoning similarly reflected in the rules protecting places of worship.115 The environment is another “object” under IHL and is protected due to the reliance people have on the natural world, with the International Court of Justice (ICJ) in Nuclear Weapons declaring “the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings”.116 It is the interrelationship between person and object and the accompanying subjective importance placed on said objects that the protection stems from, rather than a recognition of any intrinsic value in the object itself.
Considering the broader context in which the origins and developments of IHL have occurred also provides insight as to the anthropocentrism of this branch of law. IHL was officially adopted at a time when peacetime laws did not generally concern itself with the interests of animals.117 In tandem with the lack of any legal framework pertaining to the welfare of animals was an extremely limited scientific understanding of animal sentience.118 Indeed, the very existence of animal sentience was originally outright denied, and even today debate remains about the sentience of certain animals.119 Furthermore, IHL itself was limited in scope to begin with, not extending considerable protection to civilians until the adoption of the GCs in 1949.120 Contrary to it having been a matter of declination following conscious deliberation, the status quo of the silence of IHL on animal welfare is likely due to their welfare not having even crossed the minds of those creating it, this negligence itself stemming from IHL’s strong anthropocentric nature.121 As a result, animals remain the unaccounted for victims of war.
113 AP I, above n 32, art 54 (emphasis added).
114 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954 249 UNTS 240 (entered into force 7 October 1956), preamble.
115 AP I, above n 32, art 53.
116 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 at 241.
117 Peters, “At the vanishing point of IHL”, above n 7, at 1289.
118 Helen S Proctor, Gemma Carder and Amelia R Cornish “Searching for Animal Sentience: A Systematic Review of the Scientific Literature” (2013) 3 Animals 882 at 885.
119At 883.
120 Schmitt, above n 46, at 98.
121 Peters, “At the vanishing point of IHL”, above n 7, at 1287.
Chapter I Summary
In this Chapter, I laid the groundwork for my argument that IHL should provide for the welfare and protection of animals. I provided an overview of how IHL operates in Part A, highlighting that the few references made to animals under AP I offer no meaningful value to individual animals. I also outlined the four fundamental principles (military necessity, humanity, distinction, and proportionality) and drew particular focus to the weight given to humanitarian considerations in contemporary IHL. In Part B, I shifted my focus to the effects of armed conflict on animals, distinguishing between animals used for military purposes, wildlife, and domesticated animals. In Part C, I explained that IHL ignores the suffering of animals during armed conflict because of its anthropocentric nature. I move on in Chapter II to justify why animals should be included within the scope of IHL.
Chapter II: Why IHL Should Apply to Animals
I established in Chapter I that IHL fails to address the adverse effects of armed conflicts on animals due to its anthropocentric nature. The fact animals suffer in war is evidently not sufficient in and of itself to include animals under IHL. The default position of IHL is to disregard animal suffering in war; if that position is to change, justification must be provided. That is my focus in this Chapter. In Part A, I outline two propositions for why the status quo should be maintained: (1) the need to prioritise people; and (2) the legal treatment of animals in peacetime. I then rebut these propositions. In Part B, I rebut proposition (1) by arguing that not providing protection detrimentally affects people, having regard to the risks faced by persons caring for animals, public health concerns, and the interrelationship between people and animals. In this Part, I also argue the treatment of animals during natural disasters is evidence that protecting animals can work in parallel to protecting people. In Part C, I rebut proposition (2) by arguing that developments in animal jurisprudence has achieved standards improving the conduct and treatment toward animals, and that IHL’s silence on the issue of animal welfare in armed conflict gives rise to a discrepancy between animal welfare law (AWL) and IHL which should be fixed. I also draw attention to similarities between these areas of law to further strengthen the argument to expand the scope of IHL. In Part D, I move away from rebuttals and set forth independent arguments to include animals within IHL’s protection. I challenge the exclusively anthropocentric nature of IHL and argue that animals’ sentience and inherent vulnerability in armed conflict gives rise to a moral obligation to protection them. In turn, I argue this calls for a broader understanding of the principle of humanity which requires a shift towards zoocentrism.
A. Making a Case for Maintaining the Status Quo
To make a convincing case regarding any issue, it is important to not only put forward arguments in favour, but to rebut those against. This Part outlines two arguments opposing the inclusion of animals under IHL: (1) that alleviating the suffering of people is paramount and protecting animals would impair this; and (2) that to provide protection for animals in situations of armed conflict does not align with how animals are treated in peacetime.
1. People are, and should remain, the priority
The general effects of armed conflict on the human population are severe and far-reaching. Injury, death, displacement, destruction of property, and ensuing political and economic insecurity are but to name a few.122 For example, striking imagery and news stories reporting the Russian invasion of Ukraine capture the deaths of thousands of civilians, the millions of internally displaced persons and refugees, and difficulties facing civilians in accessing essential services such as health and medical supplies, adequate shelter, and water and sanitation.123 In response, hundreds of humanitarian organisations are working to provide assistance and relief throughout the regions of conflict.124 The concern that exists is that if time, money, and resources are directed towards alleviating the effects of armed conflict on animals, this will be at the expense of protecting people.125 For many, it feels instinctively inappropriate to suggest provisions be made for the protection of animals in armed conflict where there exists such immeasurable human suffering.126 Mitigating the suffering of people should remain the priority in situations of armed conflict and developments in the legal framework that risk impairing that objective should not occur. From this perspective, expanding IHL’s protection to animals is not a desirable endeavour.
2. The lawful treatment of animals in peacetime
The second argument against including animals under IHL is the value attributed to animals during peacetime. Animals have been lawfully exploited for centuries, used for food, clothing, entertainment, testing, and teaching purposes worldwide.127 Over 70 billion land animals are slaughtered per year for human consumption, representing the low value attributed to animals
122 Arthur A Stein and Bruce M Russett “Evaluating War: Outcomes and Consequences” in Ted Robert Gurr (ed)
Handbook of Political Conflict: Theory and Research (The Free Press, New York, 1980) 399 at 405.
123 Julian Hayda “6 key numbers that reveal the staggering impact of Russia’s war in Ukraine” (24 August 2022) National Public Radio <www.npr.org/2022/08/24/1119202240/ukraine-russia-war-by-numbers>; Emily McGarvey and Leo Sands “Ukraine war: Thousands of civilians trapped in Severodonetsk” (15 June 2022) BBC News <www.bbc.com/news/world-europe-61816749>; and Amnesty International “Ukraine: Ukrainian fighting tactics endanger civilians” (4 August 2022) <www.amnesty.org/en/latest/news/2022/08/ukraine-ukrainian- fighting-tactics-endanger-civilians/>.
124 European Commission “European Civil Protection and Humanitarian Aid Operations” (26 August 2022)
<civil-protection-humanitarian-aid.ec.europa.eu/where/europe/ukraine_en>; UN Refugee Agency (UNHCR) “Ukraine Emergency” (13 September 2022
125 de Hemptinne, “Protection of Animals During Warfare”, above n 66, at 175.
126 At 173.
127 Peters, “A Legal Research Agenda”, above n 80, at 8; Margo DeMello “Human-Animal Studies” in Animals and Society: An Introduction to Human-Animal Studies (Columbia University Press, New York, 2012) 3 at 4.
as sentient beings and the correspondingly high value placed on them as a commodity.128 It could be contradictory to argue for animal welfare and protection in situations of armed conflict when the mass killing of animals is legitimised in peacetime.
Arguments (1) and (2) are prima facie valid and reasonable. However, they are not irrebuttable. In Part B, I rebut the first proposition above by arguing that providing protection for animals under IHL aligns with IHL’s anthropocentric view and that protecting animals can operate in parallel to protecting people without compromising their prioritisation. In Part C, I rebut the second proposition by arguing that developments in AWL acknowledge animal sentience and seeks to minimise animal suffering considered “unnecessary”. In this Part, I also argue that the developments in AWL have given rise to a discrepancy which should be fixed and highlight structural similarities between AWL and IHL which support the expansion of IHL to include animals. In Part D, I set forth stand-alone arguments to include animals within IHL based on animals’ sentience and increased vulnerability in armed conflict, and the arising moral obligations which call for a broadened interpretation of the principle of humanity.
B. Anthropocentric Arguments for Including Animals within International Humanitarian Law
The failure of IHL to provide protection for animals affects people too. In this respect, ignoring the suffering of animals is problematic from an anthropocentric perspective. I make the following points in support of this argument. Firstly, people frequently risk their own lives to save animals. Secondly, widescale abandonment of animals gives rise to public health concerns. And thirdly, humans share a mutually dependent relationship with animals from both an environmental standpoint and a personal one. I end by drawing attention to the humanitarian aid extended to animals in situations of natural disasters, which demonstrates in general that concern for animal welfare can co-exist with protecting people.
128 Bas Sanders “Global Animal Slaughter Statistics and Charts” (10 October 2018) Faunalytics
<https://faunalytics.org/>.
1. Persons caring for animals
Protecting animals can simultaneously, albeit indirectly, also protect people. In armed conflicts many people forego the opportunity to evacuate and others travel to conflict zones for the purposes of caring for animals. Veterinary personnel, zoo staff, volunteers, and non- government organisations (NGOs) are working in Ukraine right now to ensure animals in zoos, sanctuaries, and shelters are looked after at the expense of their own safety.129 For example, more than 50 staff at the Kyiv Zoo and their families have remained in Kyiv in order to care for the animals residing there.130 Countless others have stayed to care for abandoned companion animals in shelters, in most instances the sheer number of animals saved pushing the shelters well beyond their capacity to adequately care for them.131 Animal organisations have coordinated efforts to help improve animal welfare, such as the project run by the International Fund for Animal Welfare (IFAW) and the Ukrainian Small Animals Veterinary Association that aims to vaccinate and chip displaced animals throughout Ukraine.132
Humans remaining in or travelling to areas of conflict to care for animals is not a new phenomenon. During the Iraq War in 2003 a wildlife conservationist, Lawrence Anthony, went to Baghdad from South Africa to help what was left of the animal population at the Baghdad Zoo.133 He worked alongside locals, members of the United States military and international animal protection organisations to care for the animals, many of whom were wounded, and to provide essential supplies.134 Similarly, the World Society for the Protection of Animals (WSPA) undertook an animal-aid mission for the surviving animals in the Kabul Zoo in 2001, the team including members from as far as Australia.135
129 Kristin B Sandvik “Pets and Humanitarian Borders” (25 May 2022) The Peace Research Institute Oslo (PRIO)
<blogs.prio.org/2022/05/pets-and-humanitarian-borders/>.
130 Siobhán O’Grady and Kostiantyn Khudov “A blast-stressed elephant and an abandoned lemur: The war within Kyiv’s zoo” (6 March 2022) The Washington Post <www.washingtonpost.com/world/2022/03/06/ukraine-kyiv- russia-zoo/>.
131 Eleanor Beardsley “Dodging Russian bombs, these volunteers risk it all to save Ukraine’s animals” (20 September 2022) National Public Radio <www.npr.org/sections/pictureshow/2022/09/20/1119965460/russia- ukraine-war-animal-pet-rescue-photos>; and Stefan Weichert “Ukraine war: Animal shelters struggle to cope with a surge of abandoned pets” (15 April 2022) Euronews <www.euronews.com/2022/04/15/ukraine-war-animal- shelters-struggle-to-cope-with-a-surge-of-abandoned-pets>.
132 International Fund for Animal Welfare (IFAW) “how ifaw is helping animals and people during the Ukraine crisis” (28 September 2022) <www.ifaw.org/international/news/emergency-aid-ukraine>.
133 Itoh, above n 105, at 3.
134 Alison Howell and Andrew W Neal “Human Interest and Humane Governance in Iraq: Humanitarian War and the Baghdad Zoo” (2012) 6 Journal of Intervention and Statebuilding 213 at 222.
135 Itoh, above n 105, at 4.
The lives of the people who care for animals during armed conflict are at risk by remaining in active conflict zones, moving from point A to point B for food and supplies, and, in the case of zoo staff, being put in positions of danger from the animals themselves should they be freed from their enclosures due to the damage or destruction of zoo facilities. In these situations, “safeguarding animal lives or health is tightly linked to human survival,” thus demonstrating how making provision for animals under IHL also aligns with its anthropocentric nature.136 Additionally, the actions people take to care for animals during armed conflict highlights the discrepancy between the legal framework and what is practically occurring on the ground: animals have long formed a part of the humanitarian narrative of armed conflicts and on this front, IHL lags behind.
2. Public health concerns
The second anthropocentric argument to include animals under IHL is that the impacts of armed conflict on animals can lead to public health consequences.137 When animals are abandoned and become strays free to roam they become exposed to wildlife or other unowned animals in the process and the risk of zoonotic diseases increases.138 While stray animals exist in peacetime as well, their numbers drastically increase in situations of armed conflicts which leads to heightened risks of diseases such as rabies spreading.139 Humans may become particularly at risk of contracting diseases when issues exist such as a lack of basic sanitation, contaminated water and generally poor health services – all issues that commonly arise in wartime.140 Measures such as evacuating animals, sheltering those who are unable to be evacuated, and providing preventative veterinary medicine reduces the risk of spreading diseases between animals and between animals and people.141
Disregarding companion animal welfare in situations of armed conflict is a risk not only to animals, but people too. If IHL provided for the protection of animal welfare this would result
136 Pipia, above n 95, at 179.
137 Robin Chadwin “Evacuation of Pets During Disasters: A Public Health Intervention to Increase Resilience” (2017) 9 American Journal of Public Health 1413 at 1414.
138 At 1415.
139 Matthew Leep “Stray Hearts, Vectors: The Wandering Dogs of Iraq” in Cosmopolitan Belongingness and War: Animals, Loss, and Spectral-Poetic Moments (State University of New York Press, Albany, 2021) ch 2.
140 Jennifer Leaning and Debarati Guha-Sapir “Natural Disasters, Armed Conflict, and Public Health” (2013) 369 New England journal of medicine 1836 at 1837.
141 Above n 137, at 1415.
in increased resilience and better public health.142 This argument again demonstrates how taking account of animal interests is consistent with the anthropocentric nature of IHL but consistent with it.
3. The human-animal relationship
The third anthropocentric argument is that human lives are not independent from animal lives. Humans and animals both form a component of the wider environment and share a level of interconnectedness; what happens to one often impacts the other.143 The decimation of wildlife caused by armed conflict can have adverse effects on humans both during conflict and in the years that follow.144 Take, for example, regions that rely on wildlife tourism for their economy. In the aftermath of conflict (which is occurring in increasingly high rates in biodiverse hotspots),145 this is unlikely to be a viable livelihood.146 Economic stability is crucial in maintaining peace after a conflict has ended, but the decimation of wildlife species leading to a loss of revenue results in increased instability.147 Moreover, animals also play a pivotal role in the formation and maintenance of ecosystems, 148 and armed conflict causes the population of species to drop considerably.149 There exist broader issues concerning how the loss of species can impact natural environmental systems and in turn, humans.150
The relationship shared between humans and companion animals must also be considered. The term “human-animal bond” was coined in the late 1970s, borrowed directly from the term “parent-infant bond”.151 The significance of the human-animal bond is widely recognised and familiar to the many whom share such a bond with their own companion animals. Owners often feel as close to their animals as they do their partner, children, or parents.152 These animals are
142 At 1417.
143 Robert Costanza and others “Sustainability or Collapse: What Can We Learn from Integrating the History of Humans and the Rest of Nature?” (2007) 36 A Journal of the Human Environment 522 at 523.
144 Peters, “At the vanishing point”, above n 7, at 1294.
145 de Hemptinne, “Protection of Animals During Warfare”, above n 66, at 173.
146 Leo R Douglas and Kelvin Alie “High-value natural resources: Linking wildlife conservation to international conflict, insecurity, and development concerns” (2014) 171 Biological Conservation 270 at 275.
147 At 274.
148 Grime, above n 78, at 1261.
149 Hanson, above n 74, at 582.
150 Cordula Droege and Marie-Louise Tougas “The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection” (2013) 82 Nordic Journal of Int’l L 21 at 31.
151 Steven A Zinn and Alan M Beck “The human-animal bond and domestication: Through the ages... animals in our lives” (2013) 4 Animal Frontiers 5 at 6.
152 At 6.
not viewed as simply property they own, but as members of the family. Similar bonds are present between staff and animals in zoos, wildlife parks and sanctuaries, where caring for these animals has caused an emotional bond to form.153 Indeed, the people who have remained in Ukraine to help animals, as well as those who have been forced to evacuate and have taken their animals with them, illustrate the strength of the relationship they share.
Furthermore, studies on the impact companion animals have on people during natural disasters have shown lower levels of emotional distress and anxiety are present among those who have their companion animals with them.154 Conversely, it has been found that losing or abandoning companion animals exacerbated people’s disaster experience and added to negative psychological symptoms and trauma.155 Although those studies concern natural disasters and not armed conflicts, the two are similar in the nature of extreme circumstances civilians find themselves in. In addition, because of the close ties people have with their companion animals, in the event of the companion animal dying, people often experience grief as they would the loss of another person.156 The significance of the close bond between humans and animals should not be ignored, but rather acknowledged as a strong supporting argument for the inclusion of animals in the IHL framework.
4. The parallel protection of people and animals
Having regard to the interests of animals does not undermine the protection already afforded to people; the two are not mutually exclusive, but complementary. This is already evidenced by the practical reality of what occurs on the ground during armed conflicts - as discussed above, animals are prioritised through the efforts made to protect their lives and provide for
153 Lynda Birke, Geoff Hosy and Vicky Melfi “’You Can’t Really Hug a Tiger’: Zookeepers and Their Bonds with Animals” (2019) 32 Anthrozoös 597 at 598.
154 Ashleigh M Day “Companion animals and natural disasters: A systematic review of literature” (2017) 24 International Journal of Disaster Risk Reduction 81 at 83; and K Thompson “Facing disasters together: how keeping animals safe benefits humans before, during and after natural disasters” (2018) 37 OIE Revue scientifique et technique-office international des epizooties (Special Issue on ‘The Contribution of Animals to Human Welfare’) 223 at 224.
155 At 83; and Thompson, above n 145, at 225. The beneficial impact animals have on the emotional well-being of people is also recognised through animals used in therapy. See generally, June McNicholas and Glyn M Collis “Animals as Social Supports: Insights for Understanding Animal-Assisted Therapy” in Aubrey H Fine (ed) Handbook on Animal-Assisted Therapy: Theoretical Foundations and Guidelines for Practice (Elsevier, Amsterdam, 2006) 49.
156 Sue-Ellen Brown “The Human-Animal Bond and Self Psychology: Toward a New Understanding” (2004) 12 Society & Animals 67 at 76.
their welfare.157 These efforts demonstrate that considering animal interests can work in parallel with considering that of humans. Here, I use examples of animal protection in natural disasters to further prove that protecting both people and animals without compromising that of the former is achievable.
Armed conflicts and natural disasters both have similar consequences regarding animal welfare.158 Armed conflicts and natural disasters are analogous in their indiscriminate adverse effects, the heightened vulnerability of people and animals, and the consequential need for humanitarian aid.159 If the argument is that in such extreme circumstances as armed conflict the concern for animals is not urgent or deserving of attention, it should logically follow that the same attitude is taken during instances of natural disasters. This is not the case. Natural disasters around the world have seen rescue work and humanitarian aid for animals undertaken by veterinary personnel, animal organisations, and volunteers.160 For example, following the 2010 earthquake in Haiti, numerous animal relief organisations came together to alleviate the suffering of animals, such as the American Veterinary Medical Association (AVMA), the People for the Ethical Treatment of Animals (PETA) and the International Fund for Animal Welfare (IFAW).161 This aid worked in parallel with human-focused groups, including the United Nations Children’s Fund (UNICEF) and the American Red Cross.162 The Australian 2019-2020 wildfires are another demonstration of human attempts made to protect and save animals, often at the risk of their own lives.163 Support was received not just directly from animal organisations but the wider public too.164 This is evidence that protecting animals does not compromise the protection of people. The anthropocentric nature of IHL prevents the legal framework from being truly reflective of the practical reality which sees humans and animals both being accounted for.
157 See, above n 129-132.
158 James Sawyer and Gerado Huertas “The impact of disasters on animal welfare” in Animal Management and Welfare in Natural Disasters (Routledge, New York, 2018) 43 at 44.
159 Harry Campbell and H Nair “Humanitarian crises due to natural disasters and armed conflict” (2014) 44 Journal of the Royal College of Physicians of Edinburgh 216 at 217.
160 Above n 158 at 102.
161 Itoh, above n 105, at 1-2.
162 At 1.
163 Animals Australia “Australian bushfires: Tales of rescue, devotion – and hope” (13 February 2020)
<animalsaustralia.org/latest-news/australia-bushfire-fundraisers-update/>.
164 Brendan A Wintle, Sarah Legge and John C Z Woinarski “After the Megafires: What Next for Australian Wildlife?” (2020) 35 Science and Society 753 at 755.
C. Animal Welfare Law and International Humanitarian Law: Developments, Discrepancies, and Structural Similarities
The second proposition outlined in Part A against the inclusion of animal welfare and protection under IHL is that to do so would not align with the treatment of animals in peacetime. In this Part, I rebut this by focusing on three points. Firstly, I examine how AWL has developed over time and adopted a welfarist approach that sees the minimisation of unnecessary pain and suffering. I argue there is now a consequential discrepancy between AWL and IHL which should be corrected. Secondly, I analyse how IHL has evolved, identifying various factors that have caused this evolution including the development of other branches of law. I argue it follows that the development of AWL should influence IHL. And finally, I draw attention to the parallels between AWL and IHL identified by Saskia Stucki that could be used to facilitate the integration animal welfare and protection into IHL.165
1. The development of animal welfare law
At the time IHL was officially codified, minimal animal welfare legislation existed. This fact matters, because it is difficult to reconcile providing for the well-being of animals in situations of armed conflict under IHL if no measures whatsoever are taken to achieve that objective in peacetime. The absence of any laws pertaining to the welfare of animals, however, has not continued to the present day. Scientific advances in understanding animal sentience provided the impetus required for legal entitlements for animals, and consequently, there are now substantial laws pertaining to the welfare of animals.166 Animal law jurisprudence has progressed since the inception of IHL and continues to do so, with over 120 states now having some form of animal protection legislation.167 The welfarist approach permits the exploitation by humans of animals, for reasons such as consumption, clothing, medical testing, and teaching purposes, but simultaneously prohibits the treatment of animals which would cause “unnecessary suffering”.168 The notion of the “Five Freedoms”, which focus on the five primary
165 Saskia Stucki “(Certified) Humane Violence? Animal Production, the Ambivalence of Humanizing the Inhumane, and What International Humanitarian Law Has to Do with It” in Anne Peters (ed) Studies in Global Animal Law (Springer, Heidelberg, 2020) 121.
166 de Hemptinne, “Protection of Animals During Warfare” above n 66, at 175.
167 “Animal Protection Index” World Animal Protection <https://api.worldanimalprotection.org/>; and Peters, “At the vanishing point of IHL”, above n 7, at 1287.
168 F Lundmark, C Berg and H Röcklinsberg “’Unnecessary suffering’ as a concept in animal welfare legislation and standards” in The ethics of consumption (Wageningen Academic Publishers, Wageningen, 2013) 114 at 115.
welfare needs of animals,169 are acknowledged in legislation across the globe.170 Animals are afforded legal protection in peacetime, but not in times of armed conflict. This inconsistency becomes even more illogical when considering that the vulnerability of animals, and thus the need for such protection, in conflicts increases.
The lives of animals are by no means sacrosanct in peacetime and, admittedly, the standards in AWL are low: the slaughtering of billions of animals is committed every year, the actions of doing so falling squarely within the protection of the law.171 As a minimum standard, however, AWL acknowledges animal interests and has consequently made important steps to reduce the suffering animals are capable of experiencing. Does the fact that there remain further steps to be taken in AWL to properly account for animal sentience stand as a sufficient reason to prevent those same first steps to be taken in IHL? There are without question shortcomings in AWL, but these “should not be allowed to stimy a legal evolution in other fields.”172 Ths includes IHL, the body of law that applies in the context of armed conflict where animals are arguably at their most vulnerable. Furthermore, the exploitation of animals under AWL is done on the basis of achieving “legitimate objectives” whereby the benefit gained legitimises the suffering caused by deeming it “necessary”.173 Comparatively, the suffering of animals caused in war is often arbitrary and wanton, thus making it illegitimate by the standards of AWL.174
The development of AWL means that there exists a discrepancy between this area of law and IHL. While the bar is not set particularly high in AWL, through its current disregard of animal welfare IHL fails to even set the bar in the first place. One could reasonably hold the view that the exclusion of animals under IHL in the 19th century is excusable because animal sentience was not properly understood at this stage in history. Due to the development in AWL, however, such an excuse is no longer available. Including animals within the scope of IHL would fix the discrepancy that has arisen between AWL and IHL.
169 John Webster “Animal Welfare: Freedoms, Dominions and “A Life Worth Living”” (2016) 6(6) Animals 35 at 36. The five freedoms consist of (1) freedom from hunger and thirst; (2) freedom from thermal and physical discomfort; (3) freedom from pain, injury, and disease; (4) freedom from fear and distress; and (5) the freedom to express normal behaviour.
170 Frida Lundmark and others “Intentions and Values in Animal Welfare Legislation and Standards” (2014) 27 Journal of Agricultural and Environmental Ethics 991 at 993.
171 Peters, “At the vanishing point of IHL”, above n 7, at 1287.
172 Peters, “A Legal Research Agenda”, above n 80, at 8.
173 Peters, “At the vanishing point of IHL”, above n 7, at 1287.
174 At 1288.
2. The development of international humanitarian law
The evolution of IHL is important because it informs the nature and purpose of this field of law as it presently stands. The overview of contemporary IHL I provided in Chapter I deciphered the landscape for where potential protection for animals may be found; understanding how IHL reached its present stage can provide us reason for why that protection should be sought after in the first place. I turn now then to the development of IHL.
IHL is capable of change. Shifts in the nature of armed conflict have seen IHL evolve. For example, increasing rates of NIACs meant art 3 common to the GCs and previously the sole applicable provision to NIACs was no longer adequate; consequently, AP II was adopted.175 Similarly, advances in technology and new weapons reshaped how wars are fought, giving incentive to create prohibitions on weapons such as the 1972 Biological Weapons Convention following the use of Agent Orange in Vietnam.176 Not only have these “internal” factors influenced the development of IHL, so too have “external” factors. For instance, the driving force behind the protection extended to the “natural environment” under AP I was comprised in part of the climate crisis, ever-present in contemporary peacetime but the implications of which are exacerbated in war where severe environmental damage or complete destruction of habitats often occurs.177 These developments in IHL demonstrate this branch of law is one capable of change.
To look more specifically at the development of AWL and why this should give impetus for similar animal-focused progress under IHL, other bodies of law have already influenced the evolution of IHL in their respective fields. For example, international human rights law (IHRL) was historically displaced entirely in times of armed conflict.178 Now, however, IHRL continues to apply in war.179 Article 27 of GC IV, which states “all protected persons shall be treated with the same consideration... without any adverse distinction based, in particular, on race, religion or political opinion”, is a direct reflection of the core non-discrimination principle
175 Jean-Marie Kamatali “The Application of International Human Rights Law in Non-International Armed Conflicts” (2013) 4 Journal of International Humanitarian Legal 220 at 259.
176 Nicole Deller and John Burroughs “Arms Control Abandoned: The Case of Biological Weapons” (2003) 20 World Policy Journal 37 at 38.
177 Droege, “The Protection of the Natural Environment”, above n 150, at 23.
178 Christian Tomuschat “Human Rights and International Humanitarian Law” (2010) 21 EJIL 15 at 16.
179 Cordula Droege “The Interplay Between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict” (2007) 40 Isr L Rev 310 at 316.
of IHRL.180 Once viewed as a right belonging to nation states, the right of repatriation is now considered to belong to the individual, demonstrating again how IHRL has influenced IHL.181 Environmental law has similarly prompted IHL to include the natural environment as a subject of its protection under AP I and an additional special convention, the Convention on the Prohibition of Environmental Modification Techniques (ENMOD).182 In the same manner, AWL should also influence the evolution of IHL to give impetus for provisions pertaining to the protection and welfare of animals.
Although IHL is the applicable lex specialis in times of armed conflict, it does not evolve in a silo. IHL has been steadily expanding since its inception to improve the protections for those impacted by armed conflict.183 Advances in animal welfare standards in legislation in peacetime; this progress should be reflected in IHL.
3. The identification of structural similarities between animal welfare law and international humanitarian law
In addition to the direct rebuttals above, I draw attention here to the legal frameworks of AWL and IHL and focus on their mutual application of principles. It may initially be assumed there are no similarities between IHL and AWL because of the vastly different factual contexts they apply in: IHL regulates conduct in armed conflicts and AWL regulates the treatment of animals in peacetime. However, Saskia Stucki identifies similarities that provide support for my argument to include animals under IHL.184 IHL and AWL both see the intersection of non- prohibited “necessary” violence, a notion not permitted under other areas of law, and the humanity-based restrictions placed on said violence.185 In doing so, IHL and AWL “deal with the phenomena of collectively organized and institutionalized violence.”186 The violence permitted under IHL and AWL is also considered to pursue legitimate objectives, subsequently
180 GC IV, above n 31, art 13; and Droege “International Humanitarian Law”, above n 179, at 319.
181 Theodor Meron “The Humanization of Humanitarian Law” (2000) 94 American J of Int’l L 239 at 254.
182 Pipia, above n 95, at 178; GC IV, above n 31, arts 35(3) and 55; and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques 10 December 1976 UN A/Res/31/72 (entered into force 5 October 1978) (ENMOD).
183 Pipia, above n 95, at 177.
184 Stucki, above 165, at 3.
185 At 11. One exception to this is the law of self-defence, which permits the use of physical force if for the purposes of protecting oneself from an unprovoked attack. This, however, is also governed by the idea that this violence is “necessary” in the circumstances.
186 Stucki, above n 165, at 12.
legitimising that violence.187 Drawing upon these analogies prevents us from viewing IHL and AWL as two distinct and incompatible areas of law. Rather, these structural similarities should facilitate extending the scope of IHL188 The principles of necessity and humanity dictate how IHL operates and to whom it applies; we can turn to AWL to observe how they are applied to animals to mirror this treatment in situations of armed conflict.
D. From Anthropocentrism to Zoocentrism: The Significance of Animal Sentience, Vulnerability, Moral Obligations, and the Principle of Humanity
Aside from the points I have discussed in this Chapter so far, my main argument as to why animals should be included under IHL is because animals hold intrinsic value – as people do – and thus their interests and welfare should be accounted for. Whilst it is not inaccurate to view animals as a part of the wider environment as considered in Part B, to solely treat them as such creates a shield whereby consideration for the individual is subjugated to that of the species; conservation and animal welfare are two distinct goals. Likewise, the bond between animals and humans is valuable, but it is not the predominant focus of my overall argument. In this Part, I argue that understanding animal sentience and vulnerability directs protection to be made on the individual level and imposes moral obligations which can be incorporated into the principle of humanity under IHL. A shift away from the exclusively anthropocentric nature of IHL to a zoocentric approach that confers moral standing towards animals is required to emancipate animal interests from that of the wider environment and the human population.
1. Animal sentience
Sentience is broadly understood as possessing the capacity to experience both positive and negative affective states and having subjective and perceptual awareness.189 Animals are understood to be capable of pain and suffering, the capacity of which is not limited to that of physical pain.190 Like humans, animals also experience trauma and psychological suffering, indicated through behavioural abnormalities such as becoming withdrawn, hyperaggressive, or
187 Stucki, above n 165, at 3.
188 Peters, “At the vanishing point of IHL”, above n 7, at 1288.
189 Robert C Jones “Science, sentience, and animal welfare” (2013) 28 Biology and Philosophy 1 at 2.
190 At 9.
having abnormal startle responses.191 Studies involving various species like chimpanzees, elephants and trout have found strong links between traumatic events, including human conflicts and the loss of social bonds, and displays of abnormal behaviours resembling that of post-traumatic stress disorder (PTSD).192 The concept of animal sentience has not always been accepted,193 with animals once asserted as merely “machines” or “automata”.194 This is not the case today, however, as the status of animal sentience is now well-founded and widely recognised both scientifically and in legislation.195
Animal sentience is the factor that gives rise to the need for animal protection in the first place and forms my baseline argument for animal protection under IHL. Sentience distinguishes animals from inanimate objects which do not require an alleviation of suffering because, obviously, those objects are inherently incapable of experiencing suffering. If we properly account for animal sentience and consider animals as living beings capable of pain and suffering, then how can it follow that their suffering alone is not sufficient to take measures to mitigate that suffering? The mitigation of human suffering does not require further justification; the very fact people suffer during war is considered reason enough to provide for their protection. Ignoring the effects of armed conflict on animals as IHL currently does fails to give due recognition to their sentience. Animals are sentient, and their being so should bring them directly within the purview of legal protection.
2. The element of vulnerability
Animals are inherently vulnerable.196 This vulnerability is only exacerbated in situations of armed conflict and is particularly the case for domesticated animals due to their dependence on human care.197 Animals cannot be forewarned of the danger of conflict or even comprehend
191 At 9-10.
192 Hope R Ferdowsian and others “Signs of Mood and Anxiety Disorders in Chimpanzees” (2011) 6 PLoS ONE e19855; G A Bradshaw and others “Elephant breakdown” (2005) 435 Nature 807; G A Bradshaw Elephants on the Edge: What Animals Teach Us about Humanity (Yale University Press, New Haven, 2009); and K P Chandroo, I J H Duncan and R D Moccia “Can fish suffer?: perspectives on sentience, pain, fear and stress” (2004) 86 Applied Animal Behaviour Science 225-250.
193 Proctor, above n 117, at 885.
194 Peter Harrison “Descartes on Animals” (1992) 42 The Philosophical Quarterly 219 at 220.
195 Charlotte E Blattner “The Recognition of Animal Sentience by the Law” (2019) 9 Journal of Animal Ethics 121 at 123.
196 Anat Pick “Vulnerability” in Lori Gruen (ed) Critical Terms for Animal Studies (University of Chicago Press, Chicago, 2018) 410 at 411.
197 Palmer, above n 14, at 706.
it, they cannot defend themselves against the weapons used by armed groups, and they are unable to flee areas of fighting nor adequately care for themselves if abandoned by their carers or their habitat is destroyed. Regardless of whether they become military targets, amid armed conflict, animals are left in “the most helpless and frightening situation”.198
Vulnerability is the key for protection under IHL. Blanket protection is provided for civilians under GC IV and hors de combat, combatants who are no longer participating in hostilities, are protected under GC IV and the APs.199 As a minimum standard, art 3 common to the GCs and APs sets out the non-derogable rule for the non-discriminatory humane treatment of persons not participating in the conduct of hostilities.200 In addition, IHL provides heightened protection to those considered particularly vulnerable, such as children, women, and the displaced.201 For example, women are granted additional protection in recognition of their vulnerability to sexual assault in times of conflict.202 Furthermore, parties to the armed conflict are also under an obligation to ensure children who are under the age of 15 and become orphaned or separated from their families are provided for.203
Animals are, except for the potential exclusion of military animals, non-combatants. Their vulnerability is comparable to that of children. Indeed, the photo I referred to earlier known as “the Napalm girl” became a symbol of the Vietnam War because the girl was “characterised as a child, the incarnation of innocence, and as such stands for the injustices of war.”204 The same can be said for animals. The harm caused in conflicts is not a result of their partial choices; on the contrary, animals are innocent victims of human conflict.205 The protection of the civilian population is the first and foremost concern of IHL.206 I do not suggest that the increased vulnerability of animals entails that they become a higher priority than civilians, but I do argue that animals’ heightened vulnerability is analogous to that of those IHL currently protects, and this creates grounds for the argument is made that IHL should be expanded to include animals. Therefore, measures should be made to protect and provide for animals’ welfare.
198 Pipia, above n 95, at 198.
199 GC IV, above n 31, art 3; AP I, above n 32, art 41; and AP II, above n 18, art 4.
200 GC I, II, III and IV, art 3.
201 GC IV, above n 31, pt II.
202 Article 27. For other specific references to the protection of women under this convention, see arts 38, 76, 85, 124 and 132.
203 Article 24.
204 Miller, above n 2, at 264.
205 Hediger, above n 65, at 5.
206 Thürer, above n 15, at 48.
3. The arising moral obligations and implications for the principle of humanity
Animals are sentient. This, compounded with the increased vulnerability of animals in situations of armed conflict, gives rise to a moral obligation on humans to provide for their welfare and protection. Due to their particular vulnerability, this obligation is only reinforced in relation to domesticated animals. Lawrence Anthony, the conservationist who helped rescue the animals of Baghdad Zoo, recognised this fact when he stated his motivation for helping the animals was “since humans put wildlife in cages, humans are responsible for their well- being.”207
Now, it is true that a moral responsibility does not, and should not, always translate into a legal one. Unlike other areas of law, however, the very existence of this branch of law is dependent upon the principle of humanity, a term inextricably intertwined with morality. Military necessity and humanity stand as the two pillars of IHL: military necessity makes room for practical considerations while humanity represents a moral component.208 Humanity is at the forefront in the contemporary IHL framework as I outlined in Chapter I.209 Accordingly, due consideration must be given to what “humanity” means; if animals are within the scope of humanity, it follows that they should also be within the scope of IHL. Giving weight to moral responsibilities therefore fits squarely within the framework of IHL.
Together, the moral obligations owed to animals and the principle of humanity form the entry point for animal protection under IHL. It is only a viable entry point if, however, this principle can be extended beyond humans to encompass animals within its scope too. The question must then be asked, what is humanity? Perhaps this concept is limited to humans, a reasonable and logical suggestion when considering the internal makings of the term “humanity”. This restrictive understanding makes it difficult to apply IHL, made for the purposes of protecting humans, to animals. But humanity is comprised of the characteristics that are unique to humans;210 while it distinguishes between human and animal in who it belongs to, it does not follow that the same distinction be made in regard to who it is directed to. Although the capacity
207 Itoh, above n 105, at 3.
208 Kalshoven, above n 9, at 2.
209 Schmitt, above n 46, at 98.
210 Steve Fuller “Humanity Poised Between Biology and Ideology” in Humanity 2.0: What it Means to be Human Past, Present and Future (Palgrave Macmillan, New York, 2011) 7 at 7.
to act “humanely” is inherent in being human, who we choose to extend that humanity to is within our control. Humanity then, is not a question of how we are treated, but of how we treat others. Animals should be treated humanely, and “not merely because protecting them may benefit ourselves or other persons, but because their needs have moral importance in their own right.”211 A broader interpretation of the principle of humanity in IHL is needed to include animals within the IHL framework.
4. A shift from anthropocentrism to zoocentrism
The argument that animals have moral status and are owed moral obligations in armed conflict requires room for a zoocentric perspective in IHL’s legal framework. Having always been based on anthropocentrism, such a shift frames a new mental setting within IHL. In Chapter I, I attributed the exclusion of animals in IHL to its “overwhelmingly anthropocentric view,”212 however, there is one exception to the anthropocentrism that permeates every other aspect of IHL: protection for the natural environment under art 35(3) of AP I.213 Article 35(3) is a general prohibited method of warfare under AP I, compared to its counterpart art 55 that is a prohibited method of warfare specifically aimed at avoiding risk to the civilian population’s health or survival.214 Article 35(3) has a non-anthropocentric core and provides the environment protection because of its intrinsic value. This is evidence of a shift in IHL – albeit slight – from an exclusively anthropocentric approach, indicating further shifts are possible.
Ignoring animal suffering in armed conflict is a choice. IHL has chosen to provide nothing for animal welfare even though it has the capacity to acknowledge it. No mandatory obligation exists to protect and care for animals – albeit even in a limited form – other than one we impose on ourselves. The principle of humanity stands to act as a moral compass by which we choose to guide our societies, and indeed, write our laws. As eloquently put by Thürer, “For it is human consciousness and a sense of human values and justice that are the bases of the law and that give force and direction to its development.”215 The alleviation of suffering is central to IHL; it is important that the default setting is changed from pure anthropocentrism to include zoocentrism so that alleviation can include the suffering of animals.
211 Warren, above n 179, at 3.
212 Peters, “At the vanishing point of IHL”, above n 7, at 1287.
213 AP I, above n 32, art 35(3).
214 Article 55(1).
215 Thürer, above n 15, at 24.
Chapter II Summary
In this Chapter I focused on why animal welfare and protection should be included under IHL. I put forward two propositions in Part A opposing the inclusion of animals in IHL: (1) the prioritisation of people; and (2) the apparent contradiction with the treatment of animals in peacetime. In Part B, I rebutted proposition (1) by arguing that protecting animals aligns with the anthropocentric nature of IHL, having regard to the risks faced by persons caring for animals, public health concerns, and the interrelationship between people and animals. I demonstrated that protecting animals does not compromise the protection of people by using examples of natural disasters which share the extreme circumstances present in armed conflict. In Part C, I rebutted proposition (2) by arguing the objective of the animal welfarist regime is to minimise the “unnecessary” pain and suffering of animals. I argued the progress in AWL provides the impetus for animal welfare considerations under IHL and has also given rise to a discrepancy between AWL and IHL which should be fixed. In Part D, I shifted my focus to the central idea of my dissertation: animals have intrinsic value. I argued animals’ sentience and heightened vulnerability in armed conflict give rise to moral obligations to protect them. In turn, these obligations require a broadened interpretation of the principle of humanity and a shift from the exclusively anthropocentric nature of IHL to accommodate a zoocentric approach. Having justified that animals should be included under IHL, Chapter III turns to how this can be done.
Chapter III: Incorporating Animals Into International Humanitarian Law
I argued in Chapter II that animals should be included within IHL’s scope and in this Chapter I propose how this can be done. I narrow my scope in this Chapter to domesticated animals216 because this is where I view the most pressing issues lie.217 In Part A, I consider whether animals should be classified as objects or persons for the purposes of IHL protection and conclude that animals are better classified as objects. Moving forward with this approach, I propose three ways to include animals under IHL. In Part B, I argue that the category of civilian objects should be expanded to include animals and then set out what protection this would achieve. I also argue that the proportionality principle can be utilised to benefit animals, proposing animals be given greater weight as sentience beings compared to inanimate objects. Finally, in Part C I propose that special protection should be given to veterinarian personnel and persons caring for animals (“animal personnel”). Although this protects a category of persons, it directly benefits domesticated animals due to the high level of dependence they have on humans.218
A. The Classification of Animals: Objects or Persons?
The rules providing protection under IHL are split into two categories: persons and objects. Animals are not included in IHL as of yet, so in order to do so it must be determined on what side of this binary the belong in. I consider in this Part arguments for and against including animals under both categories, but ultimately conclude that classifying animals as property is more appropriate and realistic. Classifying animals as objects is consistent with their property status in peacetime and sidesteps the problematic rights-duties implications that would arise from classifying animals as persons. Additionally, classifying animals as objects allows people to remain the top priority in armed conflict and simultaneously does not affect the applicability of the humanity principle. The classification raises the issue that it could disregards animal sentience, but I address this in Part B.
216 “Domesticated animals” consists of companion animals, livestock, and wildlife in captivity. For succinctness’ sake, I refer to “domesticated animals” hereinafter as simply “animals”.
217 Wildlife are provided some (albeit very limited) protection for the natural environment under IHL and the number of animals used for military purposes is small. In comparison, domesticated animals are offered no protection and a much larger number are affected by human conflict.
much smaller than the number of domesticated animals affected.
218 Palmer, above n 14, at 706.
1. Legal personhood and the property status of animals as the status quo
Domesticated animals are not active participants in the conduct of hostilities; as a result, animals could be classified under GC IV as “protected persons” and “civilians” under AP I.219 This would be more beneficial than categorising animals as objects because of the greater number of rules pertaining to the protection of persons that armed forces must strictly abide by.220 Additionally, the protection of persons in armed conflict is considered paramount while the protection of property is subjugated.221 However, the term “protected persons” itself in GC IV implies that to qualify for this status the subject must be a person. The definition of civilians under AP I also refers explicitly to persons, defining a civilian as “any person” and that the “civilian population comprises all persons who are civilians”.222 The ordinary interpretation of this terminology prima facie excludes animals; therefore, any argument to classify animals as persons relies on the legitimacy of extending personhood to animals.
Legal personhood is not restricted to natural persons: both human and non-human entities are granted legal personality.223 For example, corporate bodies and some aspects of the natural environment are legal persons.224 There has also been an instance of extending legal personality specifically to an animal: Ecuador’s Constitutional Court recognised a monkey’s legal rights.225 Furthermore, personhood is a dynamic concept under international law which views states as legal persons.226 These examples demonstrate that personhood is a legal fiction and the human element is not a prerequisite. Legal personality could theoretically be extended to any entity, including animals under “persons” in IHL.227
219 GC IV, above n 31, part III; and AP I, above n 32, art 51.
220 Thürer, above n 15, at 43.
221 At 48.
222 AP I, above n 32, art 50 (emphasis added).
223 Andreas Fisher-Lescano “Nature as a Legal Person: Proxy Constellations in Law” (2020) 32 Law & Literature 237 at 239.
224 For example, the Whanganui River and Te Urewera (a former national park) in New Zealand are both legal persons, as are the Ganges and Yamuna rivers in India. See respectively, Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 14(1); Te Urewera Act 2014, s 11(1); and Miglani v State of Uttarakhand HC Uttarakhand Writ Petition (PIL) No.140 of 2015, 30 March 2017.
225 Final Judgment (Rights of Nature and animals as subjects of rights) “Estrellita Monkey” case [2022] Corte Constitucional Del Ecuador No. 253-20-JH/22, 27 January 2022; and Olivia Lai “Ecuador Becomes First Country to Recognise Animal Legal Rights” (4 April 2022) Earth Org <https://earth.org/ecuador-becomes-first-country- to-recognise-animal-legal-rights/>.
226 Anne Peters “Toward International Animal Rights” in Studies in Global Animal Law (Springer, Berlin, 2020) 109 at 113.
227 Abigail Hutchison “The Whanganui River as a Legal Person” (2014) 39 AltLJ 179 at 180.
However, the property status of animals in jurisdictions globally is well-entrenched: 228 various jurisdictions have legislation pertaining to the welfare of animals while simultaneously retaining their property status, as I discussed in Chapter II.229 Although there is debate in the animal law realm regarding the removal of the property status of animals this has so far been unsuccessful in achieving rights or legal personality for animals.230 It would be a radical shift to equate animals to civilians in wartime when this proposition has been completely rejected in peacetime. Moreover, IHL is a branch of international law and is thus influenced by state practice and opinio juris.231 The status quo of animals as property means there is no general state practice that animals are treated as persons, nor is there any acceptance of such practice by the international community. Additionally, the likelihood of garnering any state agreement to grant legal personality to animals in times of armed conflict is extremely low because this would impair what military conduct is permitted.232 In comparison, classifying animals as objects under IHL aligns with the entrenched property status of animals under the welfarist regime and corrects the discrepancy I identified in Chapter II between AWL and IHL.
2. Rights, priorities, and the principle of humanity
Legal personhood is tightly linked to the granting of rights and the imposition of duties.233 This raises issues relating to the classification of animals as persons under IHL: animals inherently do not have the capacity to fulfil duties. Indeed, this is a common argument for proponents against the extension of personhood to animals.234 In contrast, no obligations would be imposed on animals if they were classified as objects because objects are neither rights-holders nor duty- bearers.235
228 Gary L Francione “Animals as Property” (1996) 2 Animal L i at iii.
229 Global Animal Law Association, above n 11.
230 See, for example, Gary L Francione “Animal Rights and Animal welfare” (1996) 48 Rutgers L Rev 397.
231 State practice is the widespread and uniform actions of nations and opinio juris is the concept that states engage in that practice out of feelings of a legal obligation. Together, these two threads form CIL. See, Rein Müllerson “On the nature and scope of customary international law” (1997) 2 Austrian Rev of Int’l and European L Online 341.
232 de Hemptinne, “Protection of Animals During Warfare”, above n 66, at 180.
233 Visa A.J. Kurki A Theory of Legal Personhood (Oxford University Press, New York, 2019) at 4.
234 Wendy A Adams “Human Subjects and Animal Objects: Animals as Other in law” (2009) 3 J Animal L & Ethics 29 at 33.
235 At 32.
Furthermore, an argument I outlined in Chapter II against including animals within IHL was that people must remain the priority during armed conflict. I concurred but argued that taking animals into account is not done at the expense of the well-being of people; protecting animals works alongside – not instead of – protecting people. This would no longer be the case if animals were classified as persons under IHL. If the interests of humans were to clash with that of animals, one could (at least theoretically) not be prioritised over the other because the classification of animals as “persons” would mean animals and people are entitled to the same level of protection. The alternative option to classify animals as property aligns with this “complementary not contradictory” view because people can remain the paramount consideration.
However, a final point to make is that rules protecting objects under IHL do not refer to “humane treatment” or protection from “violence or threats” like rules protecting persons do.236 This is potentially problematic if animals were to be classified as objects – would there still be an obligation on participants in conflicts to act humanely towards objects? To classify animals as objects resulting in the principle of humanity no longer directly applying to animals seemingly undermines one of my previous key arguments: the principle of humanity must encompass animals. However, humanity is one of IHL’s core principles and underpins every rule contained within its framework.237 Although it may first appear odd to suggest objects could be treated humanely, I argued in Chapter II that animals’ sentience, heightened vulnerability, and the arising moral obligations owed by humans means the scope of the principle of humanity includes animals. These factors exist independently of the legal status of animals; indeed, this is acknowledged by the welfarist regime wherein animals are property, but their “unnecessary suffering” is minimised.238 Animals should be treated in accordance with the principle of humanity regardless of whether they are classified as objects or persons.
I determine from the above analysis that it is more appropriate and achievable to classify animals as objects rather than persons for the purposes of IHL protection. This is for the following reasons: (1) it is consistent with the property status of animals in peacetime; (2) it avoids issues arising in relation to the fulfillment by animals of coinciding duties; (3) allows persons to remain the paramount consideration; and (4) the humanity principle is still
236 GC IV, above n 31, art 27.
237 Schmitt, above n 46, at 92.
238 Lundmark, above n 168, at 116.
applicable. Next, I turn to the specific categorisation of animals as “civilian objects” under AP I art 52.
B. Categorising animals as “civilian objects”
I established in Part A that classifying animals as objects is more appropriate and achievable than classifying them as persons. Accordingly, in this Part I focus solely on objects. I propose that domesticated animals should be included in the category of “civilian objects” under AP I art 52.239 I argue that due to reasons argued in Chapter II the traditional interpretation that limits this category to inanimate objects is no longer appropriate and should be expanded to encompass animals. I then set out the protection that the classification of animals as civilian objects provides, namely, that animals cannot become the target of attacks; the application of the principle of unnecessary suffering and accompanying rule on the prohibition on starving; and consideration of animals in the proportionality assessment should they become victims of collateral damage.240 In relation to the issue of collateral damage, I argue the proportionality principle should be applied to distinguish animals from mere inanimate objects, but as sentient beings.
1. Expanding the concept of “civilian object”
The general concept of “object” under IHL has been – almost – exclusively understood as referring to inanimate objects. For instance, this is shown in the examples provided as civilian objects under AP I which refer to, inter alia, houses, schools, and transport.241 Article 57 stipulates precautions must be taken to avoid loss of “civilian lives and damage to civilian objects”.242 Similarly, other wording throughout AP I such as “injury” to civilians compared to “damage” to objects indicates civilian objects is restricted to inanimate things. Animals are living beings; including them within civilian objects is inconsistent with this categorisation.
We can turn, however, to other existing categories of objects under AP I which do include animals to support the expansion of civilian objects. Objects indispensable to the civilian
239 AP I, above n 32, art 52.
240 Article 52(2).
241 Article 52(3)
242Article 57 (emphasis added).
population’s survival are not confined to inanimate objects; as pointed out in Chapter I, “livestock” is explicitly mentioned.243 Although this is restricted to animals used in agricultural contexts such as cattle and sheep, this clearly demonstrates the concept of “object” is broader than just inanimate objects. Additionally, the ICRC Commentary to art 52 states objects are “tangible and visible”, both of which are terms applicable to animals.244 Moreover, the term used for “object” in the French and Spanish versions of art 52 in English means “property”, indicating again this category can encompass more than just inanimate objects as animals are classified as property in peacetime.245
One final point to make is in relation to the principle of distinction under IHL which forms the binary of combatants and military objectives versus civilians and civilian objectives.246 If animals are to be included under IHL in any shape or form, they must be incorporated into this dualistic system.247 I established in Part A that making animals “persons” is problematic and the alternative option to classify them as objects is more achievable. Interpreting objects as being restricted to inanimate things means animals remain unclassified and effectively left in no-man’s land. It would be absurd to suggest the principle of distinction applies to all people and all inanimate objects but does not apply to animals. To avoid this absurdity the category of objects must necessarily be expanded to include animals.
Expanding the protection of civilian objects to domesticated animals is consistent with the inclusion of livestock in other categories of objects under IHL currently and the wider context of art 52 that the property must be tangible. It is also compatible with the property status of animals in peacetime legislation as pointed out in Part A. Next, I set out what incorporating animals into “civilian objects” under AP I would achieve.
243 AP I, above n 32, art 54(2).
244 Article 52 ICRC Commentary. This would exclude, for example, intellectual property.
245 Roscini, above n 6, at 48.
246 Crowe, above n 48, at 7.
247 An alternative third option would be to create a sui generis category for animals under IHL which classifies them as neither persons nor objects; however, exploring this option is beyond the scope of my dissertation. For a detailed discussion on this option, see Peters, “At the vanishing point”, above n 7, at 1312.
2. Animals as “civilian objects”: what this achieves
I have proposed that animals should be incorporated into the existing IHL framework as civilian objects under AP I art 52.248 I turn now to what protection this provides animals. The principle of distinction in IHL is absolute: civilian objects cannot be the target of attacks.249 This means that animals, as civilian objects, could not become victims of direct attacks. The common occurrences in armed conflicts discussed in Chapter I of participants slaughtering livestock, arbitrarily shooting zoo animals, or targeting vehicles attempting to evacuate animals would be prohibited under IHL. Furthermore, animals constituting civilian objects means other general rules in AP I could also apply, for instance, art 35 that contains the principle of unnecessary suffering.250 Because art 35 does not specify a subject, the concept of evolutionary interpretation is permitted.251 The ICJ has found that treaties have to be interpreted “within the framework of the entire legal system prevailing at the time”,252 and that where non-specific terms are used “those terms have an evolving meaning”.253 Considering the evolution of AWL globally and the international community’s concern regarding individual animal welfare, the principle of unnecessary suffering under art 35 should apply to animals too.
Companion animals, zoo animals and livestock alike dying of starvation has been a recurring consequence of conflict.254 The prohibition of starvation is expressly stipulated in AP I.255 This rule explicitly pertains only to civilians, but I propose this rule should be read in accordance with the principle of humanity as implicitly applying to animals as well. While the starvation of animals during conflict is more likely a result of neglect (rather than a conscious intention to cause their suffering), the principle of humanity also calls for an expanded interpretation of this prohibition insofar as that it means the transport and delivery of food and supplies to zoos, shelters, and farms should be at least not actively prevented and at best actively facilitated. This would improve animal welfare standards in armed conflict and prevent the unnecessary suffering of animals.
248 AP I, above n 32, art 52.
249 AP I, above n 32, arts 48 and 52(1).
250 Article 35.
251 Roscini, above n 6, at 56.
252 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (Advisory Opinion) [1970] ICJ Rep 16 at 53.
253 Dispute Regarding Navigational and Related Rights (Costa Rica v Nicaragua) [2009] ICJ Rep at 66.
254 Peters, “At the vanishing point”, above n 7, at 1286.
255 AP I, above n 33, art 54(1).
There are two instances whereby the protection provided under art 52 could be nullified: (1) when animals qualify as military objectives;256 and (2) when animals become victims of collateral damage considered proportionate to the military advantage gained.257 Regarding the first exception, military objectives are defined as objects “which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization offers a definite military advantage.”258 To become a military objective, animals would therefore need to be employed as a weapon or in a manner so that they contribute to military action.259 In this respect, animals are essentially at the mercy of persons in charge. Due to their vulnerability and lack of capacity to consent, in principle animals should never be used for military purposes; however, the exploitation of animals occurs under the welfarist regime in peacetime on the basis of “necessity”, and it would be inconsistent to argue animals cannot be similarly exploited where it is “necessary” for military reasons. The fact that animals could become open to targeted attacks by becoming a military objective as a result of their exploitation is not ideal, but nor is an issue unique to IHL; it is instead reflective of the general property status of animals.
Moving onto the second exception, the general protection from targeted attacks that would be provided to animals under art 52 does not protect them completely from becoming victims of collateral damage. Whilst it is inevitable that civilians and animals alike will be injured or killed during war, the point of IHL is to mitigate the effects of armed conflict.260 In respect to collateral damage, IHL achieves this through the principle of proportionality whereby collateral damage is permitted only where the harm caused is considered proportionate to the military advantage gained.261 The extent the proportionality principle will protect animals is dependent on how it is interpreted and applied.
256 Article 52(2).
257 Article 51(5)(b).
258 AP I, above n 30, art 52(2) (emphasis added).
259 Peters, “At the vanishing point”, above n 7, at 1290.
260 Kalshoven, above n 9, at 2.
261 AP I, above n 32, art 51(5)(b).
3. Application of the principle of proportionality
I argued in Part A that putting animals on the object side instead of the person side of the binary within IHL is the more appropriate option. However, classifying animals as objects is also potentially problematic: this equates animals to inanimate objects which disregards their sentience, intrinsic value, and heightened vulnerability in armed conflict. I argued in Chapter II that these factors are the reason animals should be given protection under IHL to begin with; it would be illogical to then adopt an approach that fails to acknowledge those same factors. To address this problem, in this Part I propose that the principle of proportionality should be utilised to give heavier weight to animals in comparison to other civilian objects.
I outlined above that the principle of proportionality is involved in determining whether a military operation proceeds. This is achieved through a proportionality assessment which permits military operations only if the collateral damage to civilian objects (alongside loss of civilian life) is not “excessive in relation to the concrete and direct military advantage anticipated.”262 Whether the harm animals may suffer constitutes proportional to the “military advantage anticipated” rests upon the value attributed to them.263 The treatment of animals in peacetime may suggest this is low, but the development of AWL and aid provided to animals in times of both conflict and natural disasters demonstrates the acknowledgement that animals do have intrinsic value.264 Furthermore, the moral obligation humans have to protect animals translates into a duty imposed via the humanity principle to give proper weight to them in undertaking the proportionality assessment. Duties are stronger than subjective opinions; regardless of whether those undertaking the proportionality assessment want to give greater weight to animals, a duty to do so means they should. Imposing this duty also gives due consideration to the principle of humanity.
The protection of people is the paramount concern of IHL and therefore carry greater weight in this assessment than objects.265 I propose a similar distinction should be made between inanimate objects and animals, justified on the basis that animals are capable of pain and suffering and are particularly vulnerable in conflict. Indeed, the very fact the traditional
262 AP I, above n 32, art 51(5)(b).
263 de Hemptinne, “Challenges During Warfare”, above n 66, at 179.
264 Peters, “At the vanishing point”, above n 7, at 1291.
265 Kalshoven, above n 9, at 2.
interpretation of “objects” excludes animals indicates they are distinguishable from merely inanimate objects. I proposed in Part B that “objects” should be expanded to include animals; here, I propose to complement this approach with continuing the distinction between animals and inanimate objects via the principle of proportionality. The greater weight assigned to animals in the proportionality assessment heightens the general protection of animals under the category of “civilian objects”.
C. Achieving Animal Welfare and Protection through Animal Personnel
I focused in Part B and C on general rules of IHL which could be expanded to provide protection for animals, namely, civilian objects and the principle of proportionality. Although affording broad protection, these measures do not have specific regard to animals. In this Part, I propose the protection of veterinarian personnel and persons caring for animals (“animal personnel”) to target animals more directly. The reality of the effects of conflict on animals relating to their abandonment and displacement means they are heavily dependent on animal personnel. It is necessary to address avenues of protection for this category of persons to properly address the issue of animal welfare and protection under IHL because without animal personnel the lives and welfare of animals would be severely compromised.
Under the existing IHL framework, provisions are set out in AP I under arts 68-71 for relief personnel to facilitate relief actions and humanitarian aid for civilians.266 Domesticated animals rely on human care, whether in the form of their owners, zookeepers, or shelter volunteers, particularly so during armed conflict when animals become abandoned on a massive scale.267 The welfare of animals in war relates to the broader protection of animals from attacks and becoming victims of collateral damage, but also concerns the everyday interests and needs food, shelter, and veterinarian care when required. The way these needs are met are through the actions of persons who either remain in or travel to regions of conflict for the purposes of caring for animals, or “animal personnel”, as it were. Their actions are often hindered, and therefore the welfare of animals is often compromised, in armed conflict. I propose that arts 68-71 should be expanded to include animal personnel as a means of providing welfare and protection under IHL. Although AP I arts 68-71 are restricted to relief that is provided for
266 AP I, above n 32, arts 68, 69, 70 and 71.
267 Peters, “At the vanishing point of IHL”, above n 7, at 1287.
“persons”, an interpretation that aligns with the principle of humanity, which encompasses animals due to their status as sentient beings, means these rules can be broadened to include animals within their scope.
AP I arts 68-71 set forth rules such as ensuring shelter and other essential supplies are provided,268 not only require parties involved in the conflict “allow” for relief consignments and personnel but also “facilitate” their passage,269 while also requiring those parties to assist relief personnel “to the fullest extent practicable”.270 If these provisions were to extend to animal personnel, the welfare of animals would be improved because one of the largest challenges facing animal welfare is ensuring the transportation and distribution of necessary supplies. Under these articles, the evacuation of animals would also be made more logistically possible through safe routes of passage. Allowing the delivery of veterinarian supplies helps animals who may be not only injured directly by conflict but frightened by explosives and who may require sedatives to minimise their distress. Ensuring the welfare of animals in situations of armed conflict via means of food, shelter and veterinarian attention if needed is an attainable object if there are appropriate measures in place to do so. The practical help is already occurring on the ground; the legal framework needs to do its part.
Chapter III Summary
I began this Chapter by focusing on the persons versus objects binary under IHL in Part A. I considered arguments for and against which side of the binary animals should sit and concluded that “objects” is the more appropriate and achievable classification. I then turned to how animals can be incorporated into the existing IHL framework as objects. In Part B I proposed animals should be expressly included in the category of civilian objects, thus protecting them from targeted attacks and starvation, and including them in the proportionality assessment regarding collateral damage. In relation to the point on collateral damage, I also proposed that the principle of proportionality should be utilised to give greater weight to animals than inanimate objects to properly account for their sentience. Finally, in Part C I proposed that special protection should be made for animal personnel to ensure domesticated animals are
268 AP I, above n 32, art 69.
269 Article 70.
270 Article 71.
able to be adequately cared for. These measures directly address the points raised in Chapter II and work within the legal parameters set in animal law in peacetime.
Conclusion
IHL ignores the effects of armed conflict on animals. The lack of any legal protection leaves animals vulnerable. On the basic premise of the fact animals are sentient beings, this is wrong. My dissertation has focused on including animals into IHL, providing reasons that justify their inclusion and how this could be done. In Chapter I, I provided an overview of contemporary IHL, its cardinal principles, and the existing protected categories. I explained in depth the effects of armed conflict on animals and attributed the exclusion of animals under IHL to the anthropocentric nature of this branch of law. In Chapter II, I challenged the status quo by explaining why IHL should deal with the issue of animals in armed conflict. I argued that the failure to provide for the protection and welfare of animals during armed conflict is problematic from both an anthropocentric and zoocentric perspective. In Chapter III, I analysed how animals should be classified in IHL’s legal framework and then looked specifically to the protection that would be given under the category of civilian objects and also proposed the special protection of animal personnel during war; a necessary step that acknowledges and responds to the high level of dependence domesticated animals have on humans.271
The dichotomy between conduct in war and humanitarian ideals is stark. But extraordinary circumstances often elicit extraordinary acts of helping. We have seen this in times of war throughout history and are still seeing this in the actions of ordinary people in the ongoing Russian-Ukraine conflict today. These efforts highlight the fact that the intrinsic value of animals is already recognised, and the legal framework should reflect this too. It is too easy to say that animal welfare and protection has no place in the context of armed conflict. The exclusion of animals in IHL is a choice, one which is no longer justified. International humanitarian law seeks to limit the suffering caused by armed conflict and alleviate its effects. Animals have always been the silent sufferers of war; it is well overdue that IHL includes animals in its protections.
271 Palmer, above n 14, at 706.
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Christian Tomuschat “Human Rights and International Humanitarian Law” (2010) 21 EJIL 15.
Michael J Toole “Displaced Persons and War” in Barry S Levy and Victor W Sidel (eds) War and Public Health (Oxford University Press, New York, 1997) 197.
Isabelle Veissier and others “European approaches to ensure good animal welfare” (2008) 113 Applied Animal Behaviour Science 279.
John Webster “Animal Welfare: Freedoms, Dominions and “A Life Worth Living”” (2016) 6(6) Animals 35.
Brendan A Wintle, Sarah Legge and John C Z Woinarski “After the Megafires: What Next for Australian Wildlife?” (2020) 35 Science and Society 753.
Steven A Zinn and Alan M Beck “The human-animal bond and domestication: Through the ages... animals in our lives” (2013) 4 Animal Frontiers 5.
F Internet resources
Animals Australia “Australian bushfires: Tales of rescue, devotion – and hope” (13 February 2020) <animalsaustralia.org/latest-news/australia-bushfire-fundraisers-update/>.
Amnesty International “Ukraine: Ukrainian fighting tactics endanger civilians” (4 August 2022) <www.amnesty.org/en/latest/news/2022/08/ukraine-ukrainian-fighting-tactics- endanger-civilians/>.
Eleanor Beardsley “Dodging Russian bombs, these volunteers risk it all to save Ukraine’s animals” (20 September 2022) National Public Radio
<www.npr.org/sections/pictureshow/2022/09/20/1119965460/russia-ukraine-war-animal-pet- rescue-photos>.
Bryan Christy “How Killing Elephants Finances Terror in Africa” (12 August 2015) National Geographic <www.nationalgeographic.com/tracking-ivory/article.html>.
Darryl Coote “Officials rush to evacuate large predators from besieged Kharkiv zoo” (12 April 2022) United Press International <www.upi.com/Top_News/World- News/2022/04/12/ukraine-ukraine-zoo-animals-evacuation/1121649744467/>.
European Commission “European Civil Protection and Humanitarian Aid Operations” (26 August 2022) <civil-protection-humanitarian-aid.ec.europa.eu/where/europe/ukraine_en>.
Global Animal Law Association “Database Legislation”
<www.globalanimallaw.org/database/national/index.html>.
Julian Hayda “6 key numbers that reveal the staggering impact of Russia’s war in Ukraine” (24 August 2022) National Public Radio <www.npr.org/2022/08/24/1119202240/ukraine-russia- war-by-numbers>.
ICRC “The Geneva Conventions of 1949 and their Additional Protocols” (29 October 2010)
<www.icrc.org/en/doc/war-and-law/treaties-customary-law/geneva-conventions/overview- geneva-conventions.htm>.
ICRC “Guidelines on the Protection of the Environment in Armed Conflict: Rules and Recommendations Relating to the Protection of the Natural Environment under International Humanitarian Law, with Commentary” (ICRC, Geneva, 2020)
<www.icrc.org/en/document/guidelines-protection-natural-environment-armed-conflict- rules-and-recommendations-relating>.
ICRC “Natural environment: Neglected victim of armed conflict” (5 June 2019)
<www.icrc.org/en/document/natural-environment-neglected-victim-armed-conflict>.
International Fund for Animal Welfare “helpful information for people fleeing Ukraine with their pets” (21 April 2022) <www.ifaw.org/news/resources-flee-ukraine-pets>.
International Fund for Animal Welfare (IFAW) “how ifaw is helping animals and people during the Ukraine crisis” (28 September 2022)
<www.ifaw.org/international/news/emergency-aid-ukraine>.
Olivia Lai “Ecuador Becomes First Country to Recognise Animal Legal Rights” (4 April 2022) Earth Org <https://earth.org/ecuador-becomes-first-country-to-recognise-animal-legal- rights/>.
Emily McGarvey and Leo Sands “Ukraine war: Thousands of civilians trapped in Severodonetsk” (15 June 2022) BBC News <www.bbc.com/news/world-europe-61816749>.
Naval Information Warfare Center “US Navy Marine Mammal Program”
<www.niwcpacific.navy.mil/marine-mammal-program/>.
Siobhán O’Grady and Kostiantyn Khudov “A blast-stressed elephant and an abandoned lemur: The war within Kyiv’s zoo” (6 March 2022) The Washington Post
<www.washingtonpost.com/world/2022/03/06/ukraine-kyiv-russia-zoo/>.
Manish Pandey “How animals in Ukraine are being rescued during war” (3 March 2022) BBC News <www.bbc.com/news/newsbeat-60593791>.
Adam Rawnsley “Russia’s War is Hell in the Pets of Ukraine and Their Rescuers” (16 March 2022) The Daily Beast <www.thedailybeast.com/russias-war-is-hell-on-the-pets-of-ukraine- and-their-rescuers>.
Bas Sanders “Global Animal Slaughter Statistics and Charts” (10 October 2018) Faunalytics
<https://faunalytics.org/>.
Kristin B Sandvik “Pets and Humanitarian Borders” (25 May 2022) The Peace Research Institute Oslo (PRIO) <blogs.prio.org/2022/05/pets-and-humanitarian-borders/>.
Marc Santora “Dolphins Dying in Black Sea, and May Be Casualties of War, Scientists Say” (2 June 2022) The New York Times <www.nytimes.com/2022/06/02/world/europe/dolphins- dying-ukraine-war.html>.
Rachel Treisman “A Russian naval base is defended by dolphins. It’s not as unusual as it sounds” (29 April 2022) National Public Radio
<www.npr.org/2022/04/29/1095549251/russia-dolphins-black-sea-naval-base>.
Tsavo Trust “War in Ukraine: what is happening to the animals in Ukraine’s zoos?” (22 April 2022) <tsavotrust.org/war-in-ukraine-what-is-happening-to-the-animals-in-ukraines-zoos/>.
UN Refugee Agency (UNHCR) “Ukraine Emergency” (13 September 2022) < https://www.unhcr.org/ukraine-emergency.html>.
Isabelle Veissier and others “European approaches to ensure good animal welfare” (2008) 113 Applied Animal Behaviour Science 279 at 280; and Global Animal Law Association “Database Legislation” <www.globalanimallaw.org/database/national/index.html>.
Stefan Weichert “Ukraine war: Animal shelters struggle to cope with a surge of abandoned pets” (15 April 2022) Euronews <www.euronews.com/2022/04/15/ukraine-war-animal- shelters-struggle-to-cope-with-a-surge-of-abandoned-pets>.
World Animal Protection “Animal Protection Index”
<https://api.worldanimalprotection.org/>.
G Other Resources
International Committee of the Red Cross (ICRC) The Geneva Conventions of 12 August 1949 Preliminary Remarks (ICRC, Geneva, 1981).
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