By Cornelia Riefsa Narwastu Evangelica

Introduction

“The greatness of a nation and its moral progress can be judged by the way its animals are treated” – an eloquent remark spoken by Mahatma Gandhi (Ascione and Arkow, 1999, p.380). Using this quote as a point of departure, this blog post reflects on how this statement can act as a motivation. Their engagement in warfare can still be observed even now in the twenty-first century (Nocella, Salter, and Bentley, 2013, p.1). It is intriguing how their classical usage in earlier centuries – horses as vehicles in battles, elephants as heavy loaders, and pigeons as postal services – has evolved in recent years (Nocella, Salter, and Bentley, 2013, p.104). One of the most advanced ways in which animals are used are operations by military marine mammals in detecting lost equipment and underwater mines (Nocella, Salter, and Bentley, 2013, p.109). Additionally, one of their most familiar roles in armed conflicts is the use of military working dogs in searching for explosive devices and taking down enemy combatants (Nocella, Salter, and Bentley, 2013, p.108).

Nevertheless, despite these examples showing the role animals still play in armed conflict, International Humanitarian Law (hereafter: IHL) – also known as the law of armed conflict or the law of war – provides them only minimum protection (Peters, de Hemptinne, and Kolb, 2022, p.9). This blog post focuses on the inadequate protection of animals under IHL, if animals are interpreted as objects and as means of medical transport, search, and rescue.

The Current Protection of Animals as Objects and Means of Transport, Search, and Rescue in IHL

Under IHL, The Geneva Conventions (GC I & GC IV), its Additional Protocol I (AP I), and the Hague Regulations can be interpreted as to offer some protection to animals.

On the surface, animals do not easily fit into the IHL category of objects or properties as historically, this category has only covered inanimate objects (Peters and de Hemptinne, 2022). However – to narrow the gap in protection – it is highly suggested for animals to be entitled to the weakest safeguard available at our disposal as a bare minimum. Firstly, the term “property” under . This interpretation is further supported by the fact that animals are legally classified as moveable things (res) in several jurisdictions worldwide (Peters and de Hemptinne, 2022). Thus, if animals fall under the protection based on this provision, it is prohibited “to destroy or seize” them, “unless such destruction or seizure be imperatively demanded by the necessities of war” (Art. 23 of the Hague Convention). In addition, under Art 57 AP I, animals can fall either under the categorization of “military objects” or “civilian objects”.  Consequently, under the former category, animals can only be targeted as “military objects” after all necessary precautionary measures have been taken in three scenarios: when they are used as weapons of war, when they qualify as military objectives, or when the harm they suffer constitutes proportionate incidental damage resulting from attacks for military purposes (Art. 57 AP I). On the other hand, when animals are acting as “civilian objects”, by way of progressive interpretation, they possess the minimum safeguard as to receive “constant care” in the conduct of military operations.

In addition, this blog post suggests the interpretation of animals as means of medical transport, search, and rescue ( Therefore, when they are performing missions as “Medical animals”, they have the right to benefit from IHL “special” safeguards (Peters and  de Hemptinne, 2022, p.1295). Animals may fall within the category of medical transport when they are employed as a means of transportation for medical related situations (Peters and  de Hemptinne, 2022, p.1296). For instance, donkeys and dogs have been deployed as ambulances and as carriers to supply water (Nocella, Salter, and Bentley, 2013, p.107; Bulanda, 2023, p.8). The definition of “medical transports” is regulated under Article 8(g) of AP I, governing “any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation” by a competent authority of a party to the conflict. It can be observed that – as written in the AP I commentary (acknowledgeable as customary international law) – this article excludes no means of transportation. Hence, animals – when used as transport – fall under the definition.

Furthermore, it is reasonable to regard animals – employed by medical personnel for search or rescue activities – as credible material or equipment for medical units (Peters, de Hemptinne, and Kolb, 2022, p.192). Such a category is encapsulated under Article 8(g) of AP I. The tasks of locating survivors of hostilities and identifying the remains of deceased victims are frequently rested upon dogs who have a sharp sense of smell (Peters, de Hemptinne, and Kolb, 2022, p.194). Accordingly, they should benefit from the reinforced protection afforded to mobile or fixed medical units to which they belong. Such protection is further strengthened by the suggested interpretation lens in light of the 2016 ICRC (International Committee of the Red Cross) Commentary on GC I, which expresses the list’s open-ended nature concerning ‘medical equipment’.

Thus, as the use of animals for medical functions is widespread in armed conflicts, it would be only reasonable for them to receive the safeguards offered by the AP I, GC I, and GC IV.

Towards a Worldwide Protection of Sufficient Animal Rights in Armed Conflicts

An impactful stepping stone for further satisfactory safeguards for animals would be the continuous attempt for ubiquitous reinterpretation of the terms “objects” and “means of medical transport, search, and rescue” to cater to the fact that animals are ‘sentient beings’(Peters, de Hemptinne, and Kolb, 2022, p.392). Although they differ in standing if compared to humans, animals possess the capacity to experience emotion, pain, and distress (Peters, de Hemptinne, and Kolb, 2022, p.397). This concept known as ‘sentience’ is recognized in the 2012 Cambridge Declaration on Consciousness, which highlights the fact that the “the neurological substrates that generate consciousness” are not only possessed by human but also “non-human animals, including all mammals and birds, and many other creatures”. Such reality should lead to global recognition of the importance of protecting them. This is depicted in the affirmation given by the WTO Panel in 2014 about the significance of animal welfare internationally and the demands in Article 13 of the TFEU to take this sentience into account when formulating and implementing the Union’s policy on specific matters. Consequently, the ethical concerns for other living beings and the inherent worth of animals are the two main foundations for establishing animal protection. In other words, it is ample to take into account their sentience when belligerents expose them to constant harm in armed conflicts.

Hence, progressively interpreting the existing IHL – applicable to humans in times of armed conflict – is an efficacious starting point for manifesting global animal protection in wartime. The strategy thenceforth is to promote halting the arbitrary usage of animals, minimizing their unnecessary exploitation in armed conflicts. Furthermore, in exceptional situations where the use of animals is “justified” during armed conflicts, they should be entitled to a certain level of protection (Peters, de Hemptinne, and Kolb, 2022, p.390). For instance, animals might still be used in essential situations requiring searching, rescuing, or transporting wounded soldiers that are onerous to accomplish by human beings alone. Nonetheless, their needs should be appropriately met without fail for the duration of their missions. As depicted in the quote by P. W. Singer, “Of all the strange changes happening in war in the 21^st century, one of the most odd has to be the return of animals to the battlefield” (Scanes and Toukhsati, 2017, p.208).

Moreover, such exigency compels the examination of the existing international legal framework and the elucidation of recommendations in its implementation by the ICRC and the UN, which ultimately initiate worldwide codifications (Peters, de Hemptinne, and Kolb, 2022, p.393). The contribution of the ICRC as an expert in IHL by cooperating with other organisations –  such as the World Wildlife Fund (WWF) and the United Nations Environment Programme (UNEP) – would significantly reinforce the efforts to diminish the lacuna in the current law and facilitate its enforcement. Additionally, these institutions have the potential to decipher and ultimately codify the provisions in the International Human Rights instruments to be implementable by state armed forces and armed groups (Peters, de Hemptinne, and Kolb, 2022, p.393).

Conclusion

In conclusion, IHL currently does not offer sufficient protection to animals in armed conflict. As aforementioned, the minimum protection of animals can be guaranteed under The Geneva Conventions (GCs), its Additional Protocol I (AP I), and the Hague Regulations by progressively interpreting the terms “objects” and “means of transport, search, and rescue” as to encompass animals. However, further adequate protection is paramount as animals are not merely “objects” or “means” that can be exploited during armed conflict. Therefore, it is critical to reinforce their protection by reinterpreting these terms in light of the fact that animals are sentient beings. Additionally, strict limitations on their usage should be internationally advocated. Lastly, the complex actualisation of the efforts to protect them should aim towards the drafting of an international instrument upholding animal rights during armed conflicts. As Ulrich Erckenbrecht stated, “Cruelty to animals and cruelty to humans are two sides of the same page on which history is written in blood” (Schulz, 2023). Thus, the discernible shift, based on human history, that has strengthened human rights should likewise inspire the enhancement of animal rights.