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A Plea for “Animalizing” the International Law of Armed Conflict

Domestic, wild, or liminal, all animals are particularly vulnerable in wartime. They are often slaughtered, bombed, starved, or looted on a massive scale. When exercising war-related activities, animals such as dogs, horses, mules, donkeys, or camels are regularly killed, injured, or left abandoned on the battlefield without treatment. In the chaos of war, many protected animals are also poached for ivory, fur, organs, skin, bones, or other products, and are subjected to all sorts of trafficking. As a result, some animal populations are declining at an unprecedent rate, thereby seriously disturbing the ecological balance of fragile ecosystems.

Despite the high vulnerability of animals during warfare, International Humanitarian Law (IHL) does not contemplate their protection. This silence can be explained by the fact that IHL conventions were adopted at a time when legal entitlements for animals did not attract much attention. Geared essentially towards the safeguarding of human beings, IHL was – and still remains today – overwhelmingly anthropocentric. Moreover, animals are killed on a massive scale in peacetime, mainly for food consumption – and in much smaller quantities for research – with the green light of the law. It is thus understandable why the life of animals may not be a priority for IHL, especially in the circumstances of warfare where human beings themselves need particular care. That said, the severe shortcomings of the legal regime governing food and agriculture in peacetime should not stymie a legal evolution in other fields. Moreover, “unnecessary suffering” in the context of farming, animal experiments, and other usage of animals is increasingly prohibited. Hence, in the same way that the strengthening of human rights has impacted the development of IHL and contributed to its “individualization” following the Second World War, the increasing – albeit still minimal – preoccupation for animal welfare during the last decades should also progressively limit belligerents’ conducts and lead to a form of “animalization” of IHL.

This animalization process could take place in three different, albeit complementary, ways: (i) through the clarification of existing IHL provisions; (ii) through the progressive interpretation of these provisions; and (iii) through the adoption of a new treaty. In this post, we will briefly show that these processes could contribute to significantly improving the welfare of animals during warfare. From simple “objects of protection,” they could become “sentient beings” and ultimately “subjects of rights.”

Animals as Objects of Protection

Animalization should begin by clearly recognising that animals deserve to be protected as objects and, specifically, as specially protected objects under IHL. Indeed, at first glance, animals do not easily fit into the IHL category of objects which seems historically to concern the inanimate. At the same time, the regime of persons – be they combatants/prisoners of war or civilians – does not encompass animals either and does not seem very protective of animals’ interests. Indeed, if qualified as combatants, “animal soldiers” could always be targeted when belonging to armed forces. But, while human beings deliberately join armed forces, perfectly cognizant that this could lead to lethal consequences, animals are not aware of the role they play in hostilities and are normally unable to react to attacks conducted against them. Moreover, the overarching rationale of IHL internment regimes is justified by the necessity of preventing internees from future involvement in hostilities (see, for prisoners of war, Art. 118 of Geneva Convention III) or from threatening the security of the adversary (see, for civilians, Art. 42 of Geneva Convention IV). However, no such risks emanate from animals once they escape from the patronage of their handlers. Furthermore, many IHL rules organising internment (for instance those on discipline, clothing, ranks, religious and intellectual activities, interrogation, financial resources, escape or sanctions) are not relevant for animals (see de Hemptinne, Kebebew, & Niyo, Animals as combatants and as prisoners of war?).

In this context, and in line with the IHL spirit to avoid any gap in protection, it appears reasonable to interpret widely the term “objects” as also encompassing animals. This seems even more justified in light of the fact that animals are legally classified as moveable things (res) in several jurisdictions around the world. This preliminary clarification is important. As objects, animals cannot be targeted, except when they qualify as military objectives (which is rare in practice) (see Art. 51(2) of Additional Protocol I), or when the harm they suffer constitutes proportionate incidental damage resulting from attacks on these objectives (see Art. 51(5)(b) and 57(2)(b) of Additional Protocol I). It is true that the proportionality assessment could vary in light of the differing value attributed to animals in different societies, which is often contingent upon what they offer to humans in their being, for instance, tools, food, clothing, etc. But there is also a growing concern for animals’ intrinsic value as sentient beings throughout the world which could be factored in the proportionality test. We will return to this point below.

Following this interpretation, animals could also qualify as “specially protected objects.” For instance, animals, such as dogs, employed for search-and-rescue activities, or horses, mules, and donkeys used for medical transport, could fall under the IHL category of “equipment belonging to medical units” (see, e.g., Art. 33 of Geneva Convention I) or “medical transports” (see, e.g., Art. 35 of Geneva Convention I and Art. 21 of Geneva Convention IV). But, again, this regime seems to have been originally conceived to protect inanimate objects only (see, e.g., list of objects cited in the 2016 ICRC Commentary to Art. 35 of Geneva Convention I, paras 2372, 2384). That said, it could be argued that such a regime is first and foremost “purpose/use-oriented.” Like any medical equipment or means of transport, animals deserve protection – independently of being living creatures – because of the medical functions assigned to them in warfare (see Art. 8(e)(g) of Additional Protocol I). On this basis, animals could benefit from IHL reinforced safeguards, adapted to the need of medical care, beyond the general protection afforded to civilian objects (see, e.g., Art. 21 of Additional Protocol I and Rules 28 and 29 of ICRC Customary Law Study).

In the same vein, the special regime applicable to cultural property contained in Additional Protocol I (Art. 53) and other multilateral treaties (Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols) could become relevant for animals. This could, for instance, guarantee that they are never targeted or used for military purposes unless “imperatively required by military necessity” (see, e.g., Rules 38 and 39 of ICRC Customary Law Study). Non-human living beings do not, however, easily fall into this category of objects (as into any other category of IHL). Legal definitions only refer to human-made objects. But, once again, it could be contended that the concept of cultural property also covers animals (see Krähenmann, Animals as Specially Protected Objects). Indeed, drawing a clear dividing line between the cultural heritage (that would be specially protected under IHL) and the natural heritage, including fauna (that would be left outside such a protection) is rather artificial. Cultural heritage and natural heritage are often intertwined, reflecting the constant interactions between humans and their environment (‘natureculture’ in the sense of Descola). A cultural value may also attach to certain animals which are employed by humans for traditional food or sports, for religious rites, or which otherwise enjoy totemic or holy status. Furthermore, it is increasingly recognized that animals at the brink of extinction have a significant value for “humanity as a whole.” This is demonstrated by the World Heritage Convention which acknowledges the duty to identify and safeguard places that form part of the common heritage of humankind, including the habitats of threatened species “of outstanding universal value from the point of view of science or conservation” (Art. 2).

If animals are “indispensable for the survival of civilian population,” such as livestock, animals also benefit from additional safeguards (see Arts 54 of Additional Protocol I and 14 of Additional Protocol II). These animals only lose protection and become legitimate military objectives when they are used exclusively as sustenance for the opposing forces or in direct support of military action (see Art. 54(3)(a) and (b) of Additional Protocol I). However, this last regime has not been conceived to protect animals per se; it is primarily designed to prevent human beings from starvation.

Finally, all animals are components of the “natural environment” and, accordingly, benefit from the safeguards offered by Art. 35(3) and 55(1) of Additional Protocol I. These provisions prohibit in an absolute manner the use of means and methods of warfare that are intended, or may be expected, to cause “long term, widespread, and severe damage” to the environment. This means that, if such damage is inflicted upon the environment, which includes animals, this damage will always be considered unlawful without having to check whether it is justified on the basis of military necessity or proportionality. While the terms “long term, widespread, and severe” have originally been interpreted restrictively, such a conception could be revisited in light of the knowledge acquired during the last decades over the particularly disruptive effects that armed conflicts have on ecosystems and wildlife in particular. What might not have appeared to be widespread, long term, and severe damage forty years ago may now be considered as such (see Bothe, The Protection of the Environment in Times of Armed Conflict, p. 57). For instance, it is nowadays accepted by scientists that destroying biodiversity spots or areas known to be populated by endangered species, or by a great diversity of flora or fauna, can also seriously affect the environment as a whole, even if the area concerned is relatively small (2020 ICRC Environmental Guidelines, para. 58).

Animals as Sentient Beings

Treating animals as mere objects is, however, out of sync with the evolution of the status and protection that animals have progressively acquired in many jurisdictions around the world. These legal developments take note of animal sentience. Currently, 124 States have in place some kind of animal protection legislation (see Global Animal Law Database). To better take account of animals’ sentience and their intrinsic value, several pieces of legislation qualify animals as “not things” or as “sentient beings” (see Peters, Animals in International Law, pp. 400-403). Obviously, these States do not go so far as to limit the killing of animals for consumption. A higher number of States prohibits cruelty against animals. To achieve this purpose, they regulate the keeping, transport, and slaughter of animals in order to reduce their suffering.

The increasing concern for animal welfare could, and should, similarly impact the way animals are treated in war. In fact, public awareness of the need to improve the animals’ conditions during armed conflict, especially dogs or horses, which often have close emotional bonds with soldiers, is growing (Roscini, Animals and the Law of Armed Conflict, p. 44). That said, so far no firm State practice, accompanied by an opinio iuris, has created a customary rule by which sentient beings would constitute a new IHL category besides persons and objects.

However, the principle of systemic integration suggests a progressive interpretation of relevant IHL rules that reflects a greater concern for animals, based on “other relevant rules of international law applicable in the relations between the parties” (Art. 31(3)(c) of the Vienna Convention on the Law of Treaties). These other relevant rules are found, e.g., in the many species conservation treaties adopted over the last decades (see de Hemptinne, Peters, & Kolb, Towards Effective Legal Protection of Animals in Wartime: Key Findings and Concluding Recommendations). Furthermore, today, respect for animal sentience and welfare is not a social value that is alien to the corpus of IHL, but a value that already forms parts of the “principles of humanity” and “the dictates of public conscience” contained in the Martens clause, as codified in Art. 1(2) of Additional Protocol I. Indeed, these principles suggest or even “dictate” “construing the relevant norms, wherever they lack clarity or precision, and wherever doubt arises in their application to the facts, in the direction of outlawing acts that cause suffering” (Peters, Animals in International Law, p. 388). A more ecological version of the Martens clause has recently been proposed by the ICRC (2020 ICRC Environmental Guidelines, Rule 16) and by the International Law Commission (2022 Draft Principle 12 on Protection for the Environment in Relation to Armed Conflicts) according to which these principles and dictates would protect not only civilians and combatants but also the environment, including animals.

This evolutionary reading of IHL rules, based on their wording, context, and telos, could have several concrete effects. For instance, in view of this reading, belligerents should not use animals to carry out functions related to the conduct of hostilities, except when absolutely necessary for certain tasks that cannot be accomplished by human beings in specific circumstances (such as searching, rescuing, or transporting wounded soldiers). Moreover, during warfare, animals should, whenever feasible, be treated as sentient beings, that experience pain, suffering, and distress. This would mean, among other things, that, in the proportionality calculation, belligerents should grant animals a value in their own right and, as a consequence, should no longer subordinate their interests to those of humans. Belligerents should also consider, whenever possible, capturing rather than “destroying” animals used for military purposes. When captured, animals should be kept in conditions, that satisfy their nutrition, safety, and health needs. Moreover, eco-centric protected zones, for particularly vulnerable areas or environmental hotspots, in which endangered species are often located, should be created, even in peacetime (see de Hemptinne, Peters, & Kolb, Towards Effective Legal Protection of Animals in Wartime: Key Findings and Concluding Recommendations).

Animals as Subjects of Rights

Beyond the interpretative evolution mentioned above, a third and last level of the animalization of IHL can be envisaged, which contemplates animals as rights bearers (“subjective” rights as opposed to “objective” welfare and ‘protective’ standards). Today, the case law on animal rights is still minimal and is limited to a few countries in Latin America and Asia. Moreover, it has so far not led to significant legislative reforms. As it is unlikely that a general State practice will emerge anytime soon on this matter, this form of animalization requires a more radical change: the adoption of a new international instrument which grants some fundamental rights to animals. At a time when States face serious challenges during warfare, it seems rather utopian to believe that governments would accept curtailing their powers to increase the protection of non-human beings by giving them rights. Any progress on this front would likely depend on the nature of the rights that are conferred on animals.

Two rights could immediately mobilise the attention of the international community: (i) the right not to be involved in warfare; and (ii) the right not to be used in experiments to test weapons. As for the first right, only a limited number of States weaponizes animals, and the general public strongly opposes this type of activity. Evolution in this respect is not entirely unlikely because technological progress has already reduced the need to employ animals as means and methods of warfare. Further, even if experimentation on animals is today widely practiced by armed forces, the second right barring their use for this purpose would certainly also find wide support in public opinion given the severe suffering such experimentation can cause to animals. Banning, once and for all, the use of animals as weapons of war and as means of testing weapons could also trigger a wider reflection on the granting of other rights to animals which are essential to preserve their integrity and arguable dignity, such as the right to receive medical care when wounded, the right not to be submitted to any cruel and degrading treatment, or the right to be preserved from military attacks.

This form of animalization of the law could significantly improve the condition of animals, not only symbolically, but also practically (Peters, Animals in International Law, pp. 440-452). On a symbolic level, rights would emancipate animals from the guardianship of humans and affirm their intrinsic value grounded on their proper interests (Peters, Animals in International Law, p. 445). On a practical level, if animals were treated as distinct legal persons possessing rights – and not just as mere entities benefiting from protection – the dynamic of the many trade-offs between military and humanitarian considerations that belligerents often conduct in war, would significantly change. Indeed,

rights confer a legal position which is elevated above the ordinary balancing of conflicting goods. When animals only benefit from protective rules, their welfare is but one interest among others. Balancing the animals’ interests against human interests typically ends up prioritising the human interests, even trivial ones. Arguably, this type of balancing is structurally biased against animals. In contrast, animal rights would allow a fair balancing in which the proper value of fundamental interests (such as the interest to live) could be integrated (Peters, ‘Towards International Animal Rights’, p. 111).

The recent practice of facilitating the access of companion animals of humans fleeing the war in Ukraine can be seen as one manifestation of an animalization of the law surrounding armed conflict. Concomitant new legal ideas would match the broader animal turn in social science and the humanities.

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Anne Peters is a director at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, a professor at Heidelberg, Freie Universität Berlin, and Basel, and a L. Bates Lea Global Law Professor at the University of Michigan.

Jérôme de Hemptinne is lecturer at Utrecht University and researcher at the University of Louvain.

 

Photo credit: State Emergency Service of Ukraine