By Kamya Chawla
During the Gulf War of 1990-1991, approximately eighty-five percent of Kuwait International Zoo’s animals died, illustrating the lack of protection for animals under International Humanitarian Law (IHL). Currently, IHL affords animals derivative and inadequate protection. For example, an evolutionary interpretation of IHL may permit the classification of certain animals as specially protected objects, including cultural property. Animals categorized as cultural property may then be the incidental beneficiaries of minimal IHL laws. Additionally, animals inhabiting the surrounding areas of protected cultural heritage sites enjoy indirect protection in armed conflicts. Such methods trivialize the protection of animals because the sentience of animals and their particular needs are not accounted for during wartime. Therefore, the absence of an explicit legal status for animals under IHL leads to their insufficient protection, demanding movement towards a separate IHL regime for animal protection.
2. Protection of Animals as Cultural Property in Armed Conflicts
Under IHL rules, the protection of cultural property is two-fold — IHL instruments provide general protection to cultural property as commonly civilian objects in addition to specific mechanisms for their protection, given their intrinsic value. Such multi-layered mechanisms are set out in, among others, the 1954 Hague Convention and the 1999 Second Protocol. These conventions define cultural property as ‘movable or immovable property of great importance to the cultural heritage of every people.’ As evident in the definition, these major IHL treaties on the protection of cultural property merely focus on human-made objects and do not contain any references to animals.
Despite the absence of animal references in the 1954 Hague Convention and the 1999 Second Protocol, animals may be incidentally protected via the protection granted to cultural heritage sites if they inhabit the sites’ adjacent areas. For instance, the Angkor Archeological Park is a cultural property provided with enhanced protection in armed conflict under the 1999 Second Protocol. Thus, the mammals and birds occupying the Park’s neighboring regions are protected secondarily. Overall, however, this form of protection only offers indirect and inexplicit protection to animals in spite of the direct harm they suffer from war crimes targeted at cultural property.
Furthermore, the narrow notion of cultural property may be interpreted progressively to include certain categories of animals, such as endangered and endemic species. As the development of cultural heritage law increasingly recognizes the relationship between natural and cultural property (due to the consistent interaction of humans with their environment), endangered animals may fall under cultural property, specifically as objects of historical or archeological interests. Moreover, as the World Heritage Convention (which does not cease to apply in times of armed conflict) preserves the natural habitats of animals in its Article 2, it also protects threatened species. However, under this approach, animals, in general, will not be protected. Instead, protection is offered only to animals classified as historical or archaeological interests or forming integral parts of a given heritage site. Thus, there is no guaranteed protection for companion animals, wildlife, livestock, and other categories of species.
In the IHL cultural property protection regime, using cultural property for military purposes or attacking such property is strictly prohibited, as stated in Article 4(1) of the 1954 Hague Convention. Thus, the endemic or endangered animals forming part of cultural heritage enjoy a supposedly high level of protection. However, this protection is subject to imperative military necessity, meaning the destruction of heritage sites that host animals may be justified. Additionally, in practice, it is challenging for armed conflict parties and, in particular, armed groups, to guarantee effective protection of natural heritage sites. This is because the sites are large and host a high number of species that are not concentrated in given areas, but rather frequently moving around. Consequently, as endangered animals are incidentally protected and other categories of animals are not even accounted for, the scope of protection is limited to certain animals under precise circumstances.
Overall, the protection of animals in times of armed conflict via cultural property fails to represent animals as sentient beings experiencing distress, pain, and suffering. As protection is incidental for limited categories of animals, others, such as livestock and companion animals, are not even granted protection, let alone value in their own right. As a result, in the last 50 years, certain species have vanished at a very high rate in wars. Even for the certain categories protected, their interests are subordinate to those of humans. For example, in the Kupreškić case, the protection for animals during armed conflict was partly called for due to their cultural significance for human populations, which disregarded the animals’ independent position as sentient beings. As animal protection in IHL cultural property treaties is dependent on dynamic interpretations, the regime is insufficient to guarantee protection and must be adapted to include the explicit protection of animals.
To circumvent the limited groups of animals protected under IHL treaties protecting cultural property and to account for the sentience of animals, a special regime for animal protection during armed conflict must be established. Forming a differentiated regime for animal protection is possible as portrayed by, among others, the existence of the cultural protection regime in IHL. In fact, the rules on protecting cultural property may serve as an example in designing and implementing a regime that assigns general protection to various categories of animals. In such a separate regime, the animals’ vulnerability and importance in the balance of nature will be explicitly addressed. Therefore, animals would be afforded definite and sufficient protection, independently of any other regime.
Under the IHL rules regarding the protection of cultural property, certain animals, particularly endangered species, are indirectly afforded minimum protection. Other categories of animals, including livestock and companion animals, are not even mentioned in the regime. This mechanism’s shortcomings are further exemplified in that it does not consider animals’ particular vulnerability and, consequently, does not account for their sentience. Instead, the general cultural property protection regime protects a sparse category of animals conditionally as, for example, the destruction of their homes may be justified by imperative military necessity. To conclude, IHL does not offer sufficient protection to animals in armed conflict and, thus, a special regime for animal protection must be developed.