A Plea for the Silent Victims: Why a New Law May Be Needed for the Protection of Animals During Armed Conflicts

Apurva Prem Rathee October, 2023

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Introduction

We have been conditioned to overlook the destructive impact of human conflicts on nature and biodiversity.[1] Time and again our world has witnessed a lack of empathy as concerns for sustainability and the protection of wildlife are forgotten in times of war.[2] Animal casualties are considered collateral damage,[3] whether they be a result of abandonment and euthanization of domesticated animals[4] or poaching, illegal trade, and destruction of the habitat of wild animals.[5]

A robust international law that protects animals in times of armed conflict may be the wake-up call that humanity needs. There are various issues encompassing this problem, but this blog post shall be limited to the following three questions:

  1. Are there any provisions in the existing international humanitarian law for the protection of animals?
  2. Can the existing international humanitarian law be amended or interpreted in such a way as to extend protection to animals?
  3. Should a new international law be framed especially for the protection of animals?

Animal Rights and International Humanitarian Law

International humanitarian law[6] (IHL) is a set of rules that seek to limit the effects of armed conflict.[7] IHL primarily consists of a body of international conventions and treaties including the Geneva Conventions of 1949[8] and their Additional Protocols of 1977,[9] and the Hague Conventions of 1954 and their additional protocols.[10]

IHL is anthropocentric in nature,[11] meaning that it almost exclusively focuses on the rights and protections of human beings.[12] However, animals have found a place in IHL through certain indirect mechanisms such as the principles governing the protection of objects or property.[13] Additionally, animals located in protected zones enjoy certain benefits.[14]

In its current form, however, IHL is insufficient in two major ways. First, categorizing animals as “objects” or “property” reduces them to inanimate things, devoid of any emotion or perception of suffering, and second, it only aims to protect animals to satisfy human interests.[15]

There are two ways in which the insufficiencies of the current IHL can be rectified. One way is to amend and broadly interpret the existing provisions of IHL. The second approach is to come up with a new instrument of law that solely focuses on the protection of animals during armed conflicts.[16]

Expanding the Exiting IHL In Its Application

Citing the dynamic and ever-evolving nature of IHL,[17] most authors, including Professor Anne Peters, advocate for a more generous reading of the existing law, a move towards “animalization” of the IHL through progressive interpretation of the provisions and adoption of new treaties to fill the gaps.[18]

These scholars argue that animals can be brought under the ambit of IHL in a more meaningful way by either considering them as combatants, prisoners of war, or civilian objects, or by considering them as objects that are protected under IHL as environment, cultural objects, or protected zones.[19] For example, Articles 35(3) and 55 of AP I prohibit using means and methods of warfare that are intended or may be expected to cause “long-term, widespread and severe damage” to the environment. Considering wildlife as part of the natural environment we can extend the same protections to it as are afforded to the environment. [20]

Another argument is that since there are philosophical similarities between animal welfare rights and the IHL,[21] the former can be used to bridge any gaps that may arise in the latter. This was seen in play recently when the European Union allowed animals from Ukraine to be adopted by its member states by relaxing the existing animal laws on international adoptions.[22] The EU, thus, extended the ideology of animal welfare by amending its existing regulation to the specific situation of armed conflicts.

New Law

Although for practical reasons most authors prefer amending the existing laws, a comprehensive, new law for the protection of animals may be a better approach in the long run for the following main reasons:

First, the current socio-political atmosphere is ripe for the adoption of an international instrument on animal rights. Most countries follow at least a few laws prohibiting cruelty towards animals indicating a trend towards acknowledging the intrinsic value of animals as sentient beings.[23] Some authors have also gone as far as bestowing personhood on animals.[24]

Second, the existing IHL arguably has extremely limited, if any, basis for the inclusion of animals within its protection. For instance, the Commentary on Article 43 of AP I explicitly states in its explanation that “armed forces” means “members of the armed forces”, i.e., persons, and adds that it does not allow, for example, the use of animals trained to attack, who are incapable of distinguishing between an able-bodied enemy and an enemy who is “hors de combat”.[25] Therefore, IHL seemingly closes the door for any interpretation, and ultimate expansion, that would include animals.

Third, the traditional method of calculating proportionality[26] under IHL has been seen to be insufficient. For instance, an attack, otherwise considered a “necessity”, may lead to a disproportionate loss by causing the extinction of a species that is required for the survival of the entire ecosystem.[27]

Fourth, broad interpretations of the provisions may constitute a material change that may lose the force of law.[28] The countries that are signatories to the original conventions may feel less inclined to follow such interpretations without a sufficiently strong backing of law.

Assuming that a new law can be adopted, the question then arises how it can be drafted. It is proposed to adopt a framework that is universal, comprehensive, and binding like the draft UN Convention on Animal Health & Protection (UNCAHP).[29] However, the scope of application should be limited to protecting animals during armed conflicts. Further, drafting the new law in a way that is analogous to the current UN Conventions by dividing it into four parts — preamble, objectives, principles, and implementation— and adopting principles that are similar to the existing conventions are likely to increase the chances of its adoption.

Some of the key principles proposed here are: the protection against widespread, long-term, and severe damage; the declaration of intentional and malicious harm to animals as a war crime; laying down strict conditions as to when animals may be attacked and by whom such as when an animal becomes a military objective; making reparations compulsory in case a state intentionally commits a wrongful act that causes damage to wildlife in relation to an armed conflict, etc.[30]

The new law must also have a higher threshold of “military necessity” that calculates damage based on the “reverberating effects” of an attack. Thus, not only considering the proportionality principle but also the humanity principle.[31]

Lastly, member states must be encouraged to implement national laws in their jurisdictions so that the international law for the protection of animals during armed conflicts is strictly followed by all signatories.[32]

In conclusion, the adoption of a new and comprehensive international law for the protection of animals during armed conflicts seems to be a better approach. The world needs a strong and deterrent law that can provide enhanced protection for its animals.

  1. Uzeyir Mammadov & Turqhay Huseynov, Protecting Environmental Human Rights in Armed Conflict Situations, 49 Envtl. Pol’y & L. 101, 101 (2019). ↑
  2. Thor Hanson, Thomas M. Brooks, Gustavo A. B. Da Fonseca, Michael Hoffmann, John F. Lamoreux, Gary Machlis, Cristina G. Mittermeier, Russell A. Mittermeier, and John D. Pilgrim, Warfare in Biodiversity Hotspots, 23 Conservation Biology. 578, 580 (2009). ↑
  3. In conflicts in Afghanistan, Bosnia, Cambodia, and Mozambique more than 54,000 animals were killed in land mine detonations. Adam M. Roberts & Kevin Stewart, Land Mines, in A Primer on Animal Rights: Leading experts write about animal cruelty and exploitation 56 (Kim W. Stallwood ed, 2002). ↑
  4. At the outbreak of World War II, 750,000 dogs, cats, and other domesticated animals were euthanized in just one week in England. Alison Feeney-Hart, The little-told story of the massive WWII pet cull, BBC News Magazine (Oct. 12, 2013), https://www.bbc.com/news/magazine-24478532. ↑
  5. In 1977, Mozambique erupted in a 15-year civil war that cost the lives of millions of people and devastated wildlife populations in the country’s Gorongosa National Park. International Fund for Animal Welfare, Animals, People and War: The Impact of Conflict 25 (2022), https://www.ifaw.org/resources/animals-people-war. ↑
  6. IHL governs the legality of justifications for war (jus ad bellum, or when states can resort to war) and the legality of wartime conduct (jus in bello, or how states must behave themselves during the war). International Humanitarian Law, Cornell Law School; https://www.law.cornell.edu/wex/international_humanitarian_law (last visited Oct. 25, 2023). ↑
  7. Int’l Comm. Red Cross, What is International Humanitarian Law? (2004). ↑
  8. See the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; The Geneva Convention for the Amelioration of the Condition of Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85; The Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 3516, 75 U.N.T.S. 287. ↑
  9. See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125 U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 U.N.T.S. 609; Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), Dec. 8, 2005. ↑
  10. See Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, S. Treaty Doc. 106-1, 249 U.N.T.S. 216; First Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954, S. Treaty Doc. 106-1, 249 U.N.T.S. 358; Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, Mar. 26, 1999, 2253 U.N.T.S. 172, 38 I.L.M. 769. ↑
  11. Jérôme de Hemptinne, The Protection of Animals During Warfare, 111 Ajil Unbound 272, 272-73 (2017). ↑
  12. Marco Roscini, Animals and the Law of Armed Conflict, 47 Israel Yearbook on Hum. Rts., 35, 37 (2017). ↑
  13. In principle, animals enjoy a similar degree of protection in their quality as property under Article 23(g) of the Hague Regulations and in their quality as objects, under the rules on targeting as codified in Additional Protocol (AP) I. See Jérôme de Hemptinne, Anne Peters and Robert Kolb, Animals in the International Law of Armed Conflict 386 (Anne Peters et al. eds., 1st ed. 2022). ↑
  14. Anne Peters & Jérôme de Hemptinne, Animals in War: At the vanishing point of International Humanitarian Law, 919 Int’l Review Red Cross 1285, 1289 (2022). ↑
  15. Roscini, supra note 13, at 90. ↑
  16. Peters & Hemptinne, supra note 14, 1288. ↑
  17. Saba Pipia, Forgotten victims of war: Animals and the international law of armed conflict, 28 Animal L. 175, 178 (2022). ↑
  18. Anne Peters & Jérôme de Hemptinne, A plea for “Animalizing” the International Law of Armed Conflict, Articles of War (Oct. 11, 2022) https://lieber.westpoint.edu/plea-animalizing-international-law-armed-conflict/. ↑
  19. Peters & Hemptinne, supra note 14, 1289-1301. ↑
  20. Hemptinne, supra note 13, 387. ↑
  21. The aim of both animal welfare laws and IHL is to ‘regulate, restrain and humanize’ violence, and not to prohibit or prevent it completely. See Saskia Stucki, Animal Warfare Law and the Need for an Animal Law of Peace: A Comparative Reconstruction, 71 Am. J. Compar. L. 189, 191 (2023). ↑
  22. The EU announced a special derogation in Regulation 2013/576, allowing the import of Ukrainian refugee pets without meeting standard requirements. Many governments have welcomed Ukrainian pets with or without their owners and without documentation, rabies vaccine, and/or microchip. See Kristan Bergtora Sandvik, Ethical Challenges Associated with the Protection of Pets in War, Bill of Health (Apr. 27, 2022), https://blog.petrieflom.law.harvard.edu/2022/04/27/ethical-challenges-associated-with-the-protection-of-pets-in-war/. ↑
  23. Carla M. Zoethout, Animals as Sentient Beings: On Animal Welfare, Public Morality and Ritual Slaughter, 7 Vienna J. Int’l L. 308, 308-09 (2013). ↑
  24. Peters & Hemptinne, supra note 14, 1303. ↑
  25. Id. at 1304. ↑
  26. The test for proportionality requires consideration only of expected civilian deaths and injuries and damage to civilian objects. Mere inconveniences or temporary disruptions to civilian life need not be considered in applying this rule. See Ian Henderson & Kate Reece, Proportionality under International Humanitarian Law: The Reasonable Military Commander Standard and Reverberating Effects, 51 Vand J. Transnat’l L. 835, 838 (2018). ↑
  27. Hanson et al., supra note 2, 583-84. ↑
  28. Article 62 Fundamental Change of Circumstances (1). A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty. Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF. 39/27 (1969). ↑
  29. See Elien Verniers & Sabine  Brels, UNCAHP, One Health and the Sustainable Development Goals, 24 J. Int’l Wildlife L. & Pol.. 38, 40-43 (2021). ↑
  30. See Int’l L. Comm’n, Rep. on the Work of Its Seventy-First Session, U.N. Doc. A/74/10, at 209-296 (2019). ↑
  31. The humanity principle pertains to the impact of war actions on the environment insofar as it prohibits inhumane methods and means of warfare. See John Alan Cohan, Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of War, 15 Fla. J. Int’l L. 481, 494-96 (2003). ↑
  32. For instance, the Rio Declaration encourages states to address liability and compensation issues through national legislation. See Michael N. Schmitt, Green War: An Assessment of the Environmental Law of International Armed Conflict, 22 Yale J. Int’l L. 1, 44 (1997). ↑