Does it Make Sense to Promote the Application of International Criminal Law to Animals? If Yes, Why and How? – EJIL: Talk! – Shield Smart

My instinctive reaction to this question is: “No, that does not make sense! International criminal law (ICL) is mainly about the protection of human dignity in specific contexts of crisis that usually threaten peace and security. The contribution of this branch of international law to the safeguarding of non-human interests should, at best, be minimal and incidental.”

It is true that ICL, in its current format, is largely anthropocentric and is, thus, mostly inadequate for the protection of animals. Indeed, victims of existing international crimes are mainly humans and, to a lesser extent, objects that belong to them and the environment in which they live. Moreover, and most importantly, the context in which these crimes occur – which is at the heart of their definition and rationale – is very much human-related: armed conflicts (for war crimes), massive or systematic attacks against civilian populations (for crimes against humanity), or systems of destruction of specific groups of individuals (for genocide). This does not, however, mean that these crisis situations are immaterial for animals; they also, and often severely, impact their living conditions and well-being. But they do not help characterise the relationship of systemic violence that exists between humans and animals.

Notwithstanding my initial reaction that ICL is irrelevant, this body of law – like international humanitarian law – can no longer ignore the evolution of the status and protection that animals have acquired in many jurisdictions around the world. In the same way that the strengthening of human rights and the increased awareness of environmental challenges after the Second World War have impacted the development of ICL, the increasing concern for animal welfare and the related adoption of hundreds of domestic legislations to protect animals against deliberate acts of cruelty should progressively influence the manners international crimes are interpreted, applied, and developed by international and domestic courts.

I submit that this (r)evolution could take place in three manners: through the ‘re-conceptualisation’ of existing international crimes (‘maximalist approach’) (i); through the reinterpretation of these crimes (‘minimalist approach’) (ii); or through the creation of a new international ‘crime against animality’ (‘middle-ground approach’) (iii).

Let me explore and evaluate these approaches in turn.

Option 1. The Maximalist Approach

Under the maximalist approach, crimes against humanity and acts of genocide would be reoriented to directly apply to animals. Animals could then become the direct victims of ‘widespread or systematic’ human abuses in the case of crimes against humanity or of acts of destruction of the ‘group of living beings’ to which they belong in the case of genocide. Accordingly, animals would benefit from the same guarantees and level of protection that are extended to human beings under ICL. Symbolically, placing animals at the centre of core international crimes would help uncover the extremely cruel and unethical nature of the system of domination, exploitation and destruction to which animals are subjected, for instance, in factory farms, laboratories, slaughterhouses, furs farms, zoos, and wildlife markets. One figure illustrates this well: around 70 billion land animals are killed every year only for food consumption!

This proposal raises, however, significant conceptual and normative challenges. Conceptually, neither crimes against humanity nor genocide are suitable for this purpose. Indeed, crimes against humanity – as these words indicate – traditionally aim to prevent human beings from being deprived of their most fundamental human rights (their ‘humanness’). By definition, they therefore exclude non-human beings from their direct scope of protection. This said, it could be contended that animals should progressively enjoy the same ‘fundamental rights’ entrusted to humans, especially given recent scientific knowledge about their capacity to experience a broad range of emotions similar to those of humans. As for the concept of genocide, it is primarily developed to protect specific groups of individuals threatened with destruction because they share common ‘national, ethnic, racial, or religious’ bonds. Obviously, these features are intrinsically human-related and, as ICL currently stands, cannot be applied to animals, even if ‘animal categories’ are also intentionally created for the purpose of organizing and carrying out their exploitation and destruction in the most efficient manner. Normatively, such an approach is difficult to reconcile with the fact that the exploitation and the slaughtering of a large portion of animals for working, farming, hunting, medical experimenting, and other commercial reasons are not currently prohibited by most international, regional, and domestic legislations. Only specific acts of violence that cause unnecessary suffering to animals (for example, during raising, transportation, or slaughter) are deemed illegal by animal welfare or anti-cruelty laws and only certain categories of animals, like pets or endangered species, are protected from being killed (see here, at 179-184).

Option 2. The Minimalist Approach

According to this option, international crimes would only be utilized to protect incidentally animals when threatened in specific human-related contexts of crisis and, when necessary, reinterpreted in light of recent developments in the field of animal welfare law. The main focus of these crimes would thus remain the safeguarding of human concerns while also acknowledging that this may entail taking into account the interests of other living creatures that are endangered by these crisis situations and are essential for the well-being or survival of humans.

Most of the ICC war crimes that protect civilian objects or the environment against illegal attacks could achieve this aim. While they do not directly address conduct against animals, they sanction belligerents who launch military operations on objects – including specially protected objects or parts of the environment – which do not constitute proper military objectives. Considering that animals are legally classified as moveable things (res) in several jurisdictions, it could be argued that they constitute civilian objects when they are not involved in hostilities or, under certain conditions, ‘specially protected objects’ (such as objects that are indispensable for the survival of civilian populations – like livestock – or cultural properties – like animals to which a special value is attached because, for example, they are at the brink of extinction). Moreover, certain animals, suh as wildlife, could be treated as components of the environment and, accordingly, benefit from additional safeguards. To reinforce the protection of animals during warfare, animals would need to be qualified, not as ‘simple objects’ but as ‘sentient beings’ capable of feeling emotions, pain and distress, thereby reflecting the specific status that they have acquired in many States. This option would then contribute to the ‘animalization’ of relevant war crime provisions, such as those prohibiting attacks that are disproportionate or that cause ‘widespread, long-term and severe damage to the environment’, by attributing to animals, in the proportionality calculation or in the evaluation of the environmental damage, a value in their own right. In that sense, animals would not be automatically subordinated to humans’ interests.

In the same vein, while not being ‘reconceptualized’ to directly apply to animals as envisaged under approach 1, crimes against humanity could provide ‘incidental protection’ to non-human creatures if widespread or massive attacks on these creatures, by repercussion, cause significant damage to civilian populations. These crimes could also be ‘animalized’ by, for instance, considering the psychological impact that the causing of unnecessary suffering to animals might have on the targeted populations in the evaluation of such damage. Genocide could be committed in a similar manner through the destruction of animals when it ultimately deprives a specific group of resources, such as livestock, which are indispensable for its survival. Furthermore, the annihilation of vital social and cultural bonds between a specific group of individuals and a particularly emblematic species could contribute to the destruction of the group.

This said, this approach remains largely anthropocentric. It does not fully recognize that animals deserve to be protected for their own sake, independently of human considerations. In addition, by being tied up to ‘human situations of crisis’, option 2 largely ignores the specific context of institutionalized violence imposed on animals.

Option 3. The Middle-Ground Approach

Another solution would be to adopt a new ‘international crime against animality’ tailored to the needs of animals and the threats they face in their interactions with humans. Indeed, there is no doubt that the protection of animals is becoming a widely recognized value at domestic level – a significant number of States have adopted animal welfare or anti-cruelty laws (sometimes at the constitutional level) – at regional level – for instance, Article 13 of the Treaty on the Functioning of the European Union recognizes animals as sentient beings, and both the European Court of Human Rights and the European Court of Justice consider that the protection of animals is a legitimate question of public interest – and, to a certain extent, at the international level – some treaties protect certain categories of animals, such as wildlife against illegal trafficking. Moreover, activities relating to animals often transcend the national borders and, therefore, require, like other international crimes, a coordinated effort at the international level.

Obviously, such moral and political grounds could play a role in advancing the criminalization of particularly serious acts of violence against animals. These grounds however do not alone suffice to make these acts truly international crimes. In principle, they need to be supported by a formal source of international law, a widely ratified treaty or a customary norm. Currently, the few conventions that protect animals against certain illegal activities do not even make animal criminality a ‘transnational crime.’ For instance, the Convention on International Trade in Endangered Species of Wild Fauna and Flora confines itself to providing a general description of transnational activities that are permissible or not permissible, and to establishing guidelines to prevent or reduce their transborder impacts. It fails to impose obligations upon States to criminalize or prosecute serious violations of these conventions (see here, and here).

Nevertheless, there is an emerging practice among States prohibiting certain acts of cruelty against animals, which could potentially constitute customary standards in animal welfare law. But these standards are currently extremely low; many forms of animal exploitation and their related violence are accepted by States (see here, at 181-184). Moreover, it remains unclear under which conditions acts of cruelty against animals should be prohibited at the international level. As with other international crimes, such a prohibition is usually determined based on the nature, purposes, and the scale of a given illegal or an illegitimate conduct. These elements are, however, difficult to assess in the context of the violence imposed on animals. Indeed, with regard to the nature and purposes of the conduct, they depend largely on the threshold of suffering that most States are ready to accept and impose on animals to carry out their ‘legitimate’ activities. Certain conduct involving animals will easily be considered illegal by nature, such as the poaching and trafficking of protected species or gratuitous brutal acts against pets. Other conduct will undoubtedly be carried out for illegal purposes, such as the killing of animals during warfare when unjustified on military grounds. But, in most cases of animal exploitation, a balancing exercise (see here, at 19-21). between the socio-economic advantage of this exploitation and its impact on the well-being of the exploited animals will have to be carried out. While such a calculation exercise is not foreign to other international crimes, it is particularly difficult to conduct it for animals whose value varies widely from one culture to another and inevitably changes over time. Moreover, under the current state of affairs, the risk that economical and other instrumental considerations will prevail over the protection of animal welfare is high (see here, at 24). That said, one can hope that certain particularly ‘inhumane’ and brutal practices (such as tail docking, dehorning, teeth clipping, hot-iron branding, castration, and debeaking ) that are largely accepted today will increasingly be ‘shocking the conscience of humanity’ and will thus progressively be outlawed, even when these practices are economically sound. The evaluation of the element of scale could be made in light of the following factors: the transboundary nature of the conduct (for instance, the involvement of ‘factory farms’ that are part of wider networks of food production extending beyond the frontiers of a single State); the collective dimension of the conduct (for instance, the implication of States, regional authorities, or multinational companies); the massive character of the conduct (for instance, the causing of ‘unnecessary’ suffering to a significant number of animals); and, incidentally, the seriousness of the environmental impact of the conduct.

Ultimately, grounding the constitutive elements of an international crime against animality on these flexible considerations of nature, purposes, and scale would provide judges enough margin of appreciation and interpretation to progressively declare particularly repulsive and large-scale forms of animal exploitation illegal and to shape an international order that is more respectful of animals’ interests. 

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