Jonas Vaupel
A. Introduction
The full-on invasion of Ukraine by Russia in February 2022 is not only a catastrophe for the thousands of soldiers and civilians who have died or live in fear for their own and their families‘ lives. The war has also significantly impacted animal life in Ukraine. Especially zoo animals have been victims of this war. Despite zookeepers putting their own lives at risk, they struggle to feed the animals.1 One zoo even requested a humanitarian corridor to evacuate the animals.2 And this is not a singular phenomenon: even more than pets,3 zoo animals are particularly vulnerable to the horrors of armed conflicts.4 For one, in contrast to other animals, they are trapped in their cages and cannot escape from fighting or shelling. If they are not affected by the fighting directly, they nonetheless suffer from its consequences, as zoo animals are completely dependent on human care.5 During many armed conflicts they have been mistreated, abandoned or eaten.6
In recent decades, the treatment of animals in law has been of growing interest to the public7 and legal scholars.8 Public international law is no exception. While animals in armed conflict have already been widely addressed in literature,9 these general rules cannot be applied unequivocally to zoo animals, because of their unique circumstances. Whether and how public international law protects zoo animals in times of war is to date largely unexplored.10 Likewise, while international organizations have made an effort to further the protection of the environment in armed conflict, it does not encompass the preservation of animals themselves.11
1 Pendlebury/Wiseman, Horace the elephant is on sedatives, Daily Mail 9.3.2022, 12, para. 2.
2 Sankaran, Kyiv Zoo Requests `humanitarian Corridor‘ to Evacuate Animals amid Ukraine War, Independent (2022), available at https://www.independent.co.uk/news/world/europe/kyiv-petting-zoo-ukraine-war-b2039501.html.
3 For the international law rules regarding pets in armed conflict, see Pipia, 57 Israel Law Review (2024) 265, 284–286.
4 Many elephants, zebras and lemurs from the Kyiv Zoo show signs of stress from the sound of explosions and air raid sirens, O’Grady/Khudov, A Blast-Stressed Elephant and an Abandoned Lemur: The War within Kyiv’s Zoo, The Washington Post (2022), available at https://www.washingtonpost.com/world/2022/03/06/ukraine-kyiv-russia-zoo/. For the plight of zoo animals during World War II see Kinder, in Hediger (ed.), Animals and War: Studies of Europe and North America1, 2013, 45 et sqq. and Pipia (n 3), 275.
5 Peters, Animals in International Law1, 2021, 339; Andrzejewski, in Nocella II/Salter/Bentley (eds), Animals and War: Confronting the Military-Animal Industry Complex1, 2013, 93.
6 About the mistreatment of Animals in the Kuwait Zoo during Iraqi’s conquest: Spang, 107 Modern Language Notes (1992) 752, 752; about the fate of animals in the Baghdad Zoo during the invasion 2003: Howell/Neal, 6 Journal of Intervention and Statebuilding (2012) 213, 219. They might even be used for forced war-time labour, as the example of elephant Jenny from a zoo in Hamburg during World War II shows, Sorenson, in Nocella II/Salter/Bentley (eds), Animals and War: Confronting the Military-Animal Industry Complex1, 2013, 21.
7 In 2023 a Eurobarometer survey revealed that 84 % of Europeans believe that the welfare of farm animals should be better protected and a majority of 74 % shared this opinion for pets, Eurobarometer, Attitudes of Europeans towards Animal Welfare, 2023, available at https://europa.eu/eurobarometer/surveys/detail/2996Ro. A recent study in France showed that nine out of ten citizens support the direct inclusion of animal welfare in public decision, Espinosa/Treich, 23 The Journal of Economic Inequality (2025) 809, 828. For the growing public concern for animal welfare in the EU since the start of the new millennium see Broom, Animal Welfare in the European Union, 2017, 36–41.
8 Stucki, Grundrechte für Tiere1, 2016, 25.
9 See for example Peters (n 5), 333–420, Roscini, in Peters/de Hemptinne (eds), Animals in the International Law of Armed Conflict1, 2022, and Pipia, 28 Animal Law (2022) 175.
10 Only Pipia (n 3), 275–277 touches on the issue briefly.
11 Regarding the protection of the environment: International Committee of the Red Cross, Guidelines on the Protection of the Natural Environment in Armed Conflict: Rules and Recommendations Relating to the Protection of the Natural Environment under International Humanitarian Law, with Commentary, 2020 and ILC, Draft principles on protection of the environment in relation to armed conflicts, with commentaries, 2022. As shown in the preliminary works, the ILC understands environment as including „natural resources, both abiotic and biotic, such as air, water, soil, fauna and flora and the interaction between the same factors, and the characteristic aspects of the landscape.“ (Jacobsson, Preliminary Report on the Protection of the Environment in Relation to Armed Conflicts, 2014, 219 para. 79). This definition does not take the individual animal into focus. For the protection of zoo animals as part of the environment see also Section B.III.
This is a significant rift in the protection of biodiversity, as zoo animals are particularly vulnerable to the horrors of war (see above). This article will fill the research gap in three steps. First, it will examine which international rules are applicable to zoo animals during armed conflict (Section B). In the next step insufficiencies of the current legal framework are worked out (Section C). The article briefly provides suggestions of how to protect zoo animals more adequately during times of armed conflict (Section D), before recapping the article’s results in a conclusion (Section E).
B. International law applicable to zoo Animals in armed conflict
This section adopts a doctrinal approach in finding out which rules of international law protect zoo animals in armed conflict and focuses on the rules of International Humanitarian Law12 (IHL). In the case of other international law regulations applicable to zoo animals, it is unclear whether these apply in times of war.13
The focus of IHL de lege lata is to minimize human suffering in the face of war.14 IHL regimes are anthropocentric because animal welfare was not the contracting parties concern in the time they were made.15 Therefore, there are no IHL norms explicitly protecting zoo animals in times of war based on their intrinsic value.16 To what extent zoo animals are protected by IHL is open to debate. The scope of investigation in this article is IHL norms applicable to interstate conflicts within the meaning of Art. 2 para. 1 of the Geneva Convention.
I. Zoo Animals as persons
Subject of IHL norms are persons. Persons in the sense of IHL can either participate in hostilities (combatants, Art. 43 II of the Additional Protocol I to the Geneva Conventions (AP I)) or not (e.g. civilians, Art. 50 I AP I) and possess corresponding rights and obligations.17
12 International Humanitarian Law is the part of public international law that deals with the ius in bello, Gasser, Humanitarian Law, International, Max Planck Encyclopedia of Public International Law, 2015 para. 1. For a general overview of the aims of IHL see: O’Connell, in Fleck (ed.), The Handbook of International Humanitarian Law3, 2013, 1 et sqq.
13 Still, a trend is emerging for a broad applicability of international environmental protection law during armed conflict. In Art. 7 Annex lit. g) the ILC comes to the conclusion that „treaties relating to the international protection of the environment“ implicate that they continue in operation, ILC, Draft articles on the effects of armed conflicts on treaties, with commentaries, 2011. United Nations General Assembly, Rio Declaration on Environment and Development, A/CONF.151/26 (Vol. I), 1992 Principle 24 at 2 states: „States shall […] respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary“. In general on the effect of armed conflicts on treaties see: Vönkey, Armed Conflict, Effect on Treaties, Max Planck Encyclopedia of Public International Law, 2011.
14 Stucki, Beyond Animal Warfare Law: Humanizing the `War on Animals‘ and the Need for Complementary Animal Rights, 2021 MPIL Research Paper Series (2021) 53, 17; See also e.g. the preamble of the HC II stating to serve „the interests of humanity and […] civilization“.
15 de Hemptinne, in Peters (ed.), Studies in Global Animal Law1, 2020, 174 et sqq.; Pipia (n 9), 179. The modern animal welfare ethics debates were started by the works of Singer and Regan in 1975 and 1983, Stucki (n 8), 25. The first IHL regimes were established in 1864 and the latest in 1977, Melzer, International Humanitarian Law: A Comprehensive Introduction1, 2016, 34–37. For the historical development of animal welfare ethics in general see Lennkh, Die Kodifikation des Tierschutzrechts1, 2012, 31 et sqq.
16 Roscini, 47 Israel Yearbook on Human Rights (2017) 35, 51.
17 For example, combatants have the right to participate directly in hostilities (Art. 43 II AP I) and civilians have the right not to be objects of attacks (Art. 51 II, III AP I). Furthermore, there are special rules protecting persons that are especially in need of protection. For example, Art. 77 and 78 AP I stipulate that all parties to the conflict ensure the protection and evacuation of children. Art. 8 et sqq. AP I ensure the special protection of wounded and sick persons, whether military or civilian.
The question is whether animals can be considered persons in the meaning of IHL de lege lata. Some scholars argue that this is the case, as the definition of person in IHL is not necessarily restricted to legal persons and that therefore animals could be considered persons.18 Still, there are multiple arguments against this proposition. First, if one was to consider animals as persons, they would not only be protected by rights but also face obligations under IHL without being able to understand and apply the law.19 In its commentary to the AP I the International Committee of the Red Cross (ICRC) explicitly states that animals are not persons of the armed forces.20 Further, the International Court of Justice (ICJ) in its Nuclear Weapons Advisory Opinion seems to treat animals as part of the environment rather than persons in IHL.21 Finally, there is no state practice supporting this argument. For these reasons it is broadly accepted that zoo animals de lege lata are not persons or subjects of IHL.22
II. Zoo Animals as property or objects
IHL does not only protect persons directly. It also forbids to „destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war“ (Art. 23 lit. g of the Hague Convention (HC)). Furthermore, „civilian objects shall not be the object of attack or of reprisals“ (Art. 52 I 1 AP I).23 Zoo animals falling within the definition of property in the sense of Art. 23 lit. g HC is relatively uncontested.24 Conversely, subsuming zoo animals under objects within the meaning of AP I on the other hand is more difficult. Some scholars argue that animals in general do not fall into the category of objects in IHL,25 or that only livestock animals are included,26 which would exclude zoo animals as well.
It is true that the travaux préparatoires of Art. 52 II AP I suggest that objects were intended to be only inanimate objects and Art. 52 III AP I only lists inanimate objects as examples.27 That said, the meaning of an international law clause can change over time.28 The ICRC commentary to the AP I
18 See Peters (n 5), 398 et sqq.
19 Roscini (n 9), 77.
20 Sandow/Swinarski/Zimmermann, Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977: Commentary of 19871, 1987, 512 para. 1627.
21 ICJ, Advisory Opinion, Nuclear Weapons, Rep. 1996, p. 226, para. 30.
22 de Hemptinne, 111 AJIL Unbound (2017) 272, 274; Roscini (n 16), 40; Pipia (n 9), 184 et sqq.; Nowrot, 40 Historical Social Research (2015) 128, 135.
23 „Civilian objects“ are also named in Art. 57 I and 51 V lit. b) of AP I. For more details see Solis, The Law of Armed Conflict: International Humanitarian Law in War3, 2022, 273 et sqq.
24 Of this view Pipia (n 3), 276 and Peters (n 5), 347. Notably, state practice does not seem differentiate between private and public property, accordingly, zoo animals are protected no matter who owns them. See for example: Australian Defence Headquarters, Law of Armed Conflict, 2006 Ch. 7 p. 10 para. 7.43; Department of the Army Field Manual, US, The Law of Land Warfare, 1956, p. 149. For an overview see: International Committee of the Red Cross, Destruction and Seizure of Property of an Adversary, available at https://ihl-databases.icrc.org/en/customary-ihl/v2/rule50.
25 E.g. Roscini (n 9), 78 notes that animals could alternatively be considered a third category of military objectives.
26 In this direction Pipia (n 3), 272, 275. He argues that Art. 54 II AP I lists only livestock as a „potential object necessary for human survival and prohibits attacks, destruction, removal or rendering it useless“.
27 de Hemptinne (n 15), 178 mainly relies on this argument.
28 Villiger, in Cannizzaro (ed.), The Law of Treaties Beyond the Vienna Convention1, 2011, 109 para. 2; Herdegen, Interpretation in International Law, Max Planck Encyclopedia of Public International Law, 2020 para. 18. Accordingly, courts do not limit their elaboration on the ordinary meaning to the understanding when the treaty was made, but also take present-day understanding into their consideration, Fox, in Fitzmaurice/Elias/Merkouris (eds), Treaty Interpretation and the Vienna Convention on the Law of Treaties: 30 Years On1, 2010, 67. For the difficulties of finding the ordinary meaning in international law in general: Slocum/Wong, 46 Yale Journal of International Law (2021) 191.
defines objects as „tangible and visible things“.29 This could include animals, as „in most legal systems, animals have traditionally been considered as being `moveable objects’\,“.30 Today’s ordinary meaning therefore does not necessarily exclude animate beings. In Art. 52 I 2 AP I and state practice, a negative definition of civilian object is employed: civilian objects are objects which are not military objectives.31 As zoo animals are not a military objective, they would therefore be considered civilian objects. Furthermore, the ICJ appears to deem animals as objects in regard to IHL.32 All in all, the preferable interpretation de lege lata of the relevant IHL norms is to include animals in the meaning of object and property.33
In conclusion, while a binding definition is missing, it is reasonable to assume that zoo animals are protected as „property“ and „civilian objects“ by Art. 52 I AP I and Art. 23 lit. g) HC. Therefore, they have better protection than wild animals, because latter are neither property nor objects of civilians.
III. Zoo animals as part of the environment
Art. 35 III, 55 I AP I as well as customary IHL34 stipulate the protection of the natural environment against widespread, long-term and severe damage. The natural environment is the biological environment in which a population is living and includes the fauna as well.35 It is contested whether the environment is protected only as far as the (human) population depends on it36 or not.37 However, the protection of the environment de lege lata is of little use for animals in zoos. First of all, it is unclear if the ordinary meaning of natural environment includes non-wild or captured animals.38 Furthermore, the condition of widespread damage seems to be a threshold rather fitting for large areas such as national parks, but not for a zoo.39 Some authors argue that endangered species themselves could be considered as cultural heritage, but there is not sufficient state practice supporting this argument.40 All in all, the regulations protecting the environment in IHL do not grant zoo animals protection exceeding the rules about civilian objects and property.41
IV. Zoo animals as part of zoo buildings
Art. 53 I AP I protects historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples from acts of hostility and prohibits the use of such objects in support of the military
29 Sandow/Swinarski/Zimmermann (n 20), 634 para. 2010.
30 de Hemptinne (n 15), 178.
31 E.g. Republic of South Africa, Prohibition or Restriction of Certain Conventional Weapons Act, 31508, 2008 Sec. 1; Ministry of Defence, UK, The Joint Service Manual of the Law of Armed Conflict, 2004, p. 695.24.1; Department of the Air Force, US, International Law: The Conduct of Armed Conflict and Air Operations, 1976 Ch. 5 p. 7. Overview in: International Committee of the Red Cross, Definition of Civilian Objects, available at https://ihl-databases.icrc.org/en/customary-ihl/v2/rule9.
32 ICJ, Advisory Opinion, Nuclear Weapons, (n 21) para. 30.
33 Of this view also Peters (n 5), 387 and Roscini (n 9), 89. For a more historical-textual argumentation see Roscini (n 9), 78–79.
34 Oeter, in Fleck (ed.), The Handbook of International Humanitarian Law3, 2013, 211 et sqq.; ICJ, Advisory Opinion, Nuclear Weapons, (n 21) para. 30. On the protection of the natural environment in armed conflict in general: von der Decken/von Rochow, Nature, International Protection, Max Planck Encyclopedia of Public International Law, 2025 paras. 35-41.
35 Sandow/Swinarski/Zimmermann (n 20), 662 para. 2126.
36 ICJ, Advisory Opinion, Nuclear Weapons, (n 21) para. 29; Hulme, 2 Journal of Armed Conflict (1997) 45, 59.
37 Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict4, 2022, 236. Schmitt, 22 Yale Journal of International Law (1997) 1, 70 et sqq. argues that Art. 55 AP I protects only the human population whereas Art. 35 III AP I has a wider application.
38 See already Fn. 9. In general: Peters (n 5), 366.
39 Ibid., 366 et sqq.; Low/Hodgkinson, 35 Virginia Journal of International Law (1995) 405, 429 et sqq.
40 Krähenmann, in Peters/de Hemptinne (eds), Animals in the International Law of Armed Conflict1, 2022, 97.
41 Of this view also Pipia (n 9), 276.
effort. Zoos are not places of worship and therefore not protected by Art. 53 I AP I.42 Principle 4 of the International Law Commission’s (ILC) draft principles on protection of the environment in relation to armed conflict regulates that „states should designate […] areas of environmental importance as protected zones in the event of an armed conflict“. Nevertheless, as zoo animals likely are not considered part of the environment in IHL (see above), it is more than doubtful whether a state could designate a zoo as a protected zone. Art. 27 and 56 HC protect educational and scientific property i.a. from destruction, intentional damage, sieges and bombardment. Furthermore, Art. 2 and 3 of the Convention for the Protection of Cultural Property in the event of Armed Conflict of 14 May 1954 (CPCP) stipulate the safeguarding and respect for Cultural Property in times of war. According to Art. 1 lit. a) CPCP it includes scientific collections as well, as long as they are of great importance for the cultural heritage of every people. The definition of Cultural Property in the CPCP is broader than the one for cultural objects and places of worship in Art. 53 I AP I as great cultural importance is a subjective measure.43 It is in the states‘ discretion to decide what its Cultural Property is. This can include zoos as a whole or only parts of a zoo.44
V. V. Conclusion
The doctrinal approach has shown that the protection of zoo animals in IHL is unique to other kinds of animals. As they are not wild animals, they are protected only indirectly as property and civilian objects. Notably, the actual zoo building they are situated in might enjoy the highest protection under IHL, which also indirectly benefits the protection of zoo animals.
C. C. Zoo Animal Welfare problems because of the current IHL regulations
The following section discusses the reasons for the current lack of adequate protections of zoo animals in IHL. To measure the sufficiency of IHL regulations, this article builds on the international law concept of „animal welfare“ which holds that „humans are entitled to use and kill animals for manifold purposes, but in doing so, they should treat animals humanely and avoid inflicting unnecessary pain or suffering“.45 International law therefore has to limit and prohibit unnecessary suffering of animals.46 As a consequence, IHL provisions are insufficient in protecting zoo animals, if they do not appropriately address and prohibit their suffering.
I. Problems of categorizing zoo animals as mere civilian objects
Zoo animals are not completely unprotected by IHL as they will qualify as civilian objects (see above) in most cases. Yet, this categorization is not enough to prevent them from unnecessary suffering.
Take for an example, how a zoo animal’s life is valuated in the equation of proportionality of collateral damage. Civilian objects cannot be direct object of an attack or reprisal. That said, harm to civilian objects can be inflicted if it is a
42 Peters (n 5), 356.
43 Dinstein (n 37), 207; O’Keefe, in Fleck (ed.), The Handbook of International Humanitarian Law3, 2013, 429 para. 901.
44 Peters (n 5), 357. E.g. the Penguin Pool of the London Zoo as a Grade building in England, Departement for Digital, Culture Media & Sport, UK, 3 Studies in Conservation (1958) 194, 6; Historic England, PENGUIN POOL, Non Civil Parish – 1225665 \textbar Historic England, available at https://historicengland.org.uk/listing/the-list/list-entry/1225665.
45 Stucki (n 14), 7. Animal welfare thinking builds on the thought that “both humans and [animals] deserve protection on sentience grounds“, de Vriese/Handtrack, 11 Journal of Animal Ethics (2021) 63, 64. Critical on the animal welfare standard Francione, 10 Animal Frontiers (2020) 29, 29, who argues that animal welfare standards „do little more than ensure that animals are exploited in an economically efficient way.“
46 Garner, 1 Journal of Animal Law and Ethics (2006) 161, 163. How to exactly measure „suffering“ of animals is open to debate. An overview over existing frameworks is provided in Blokhuis/Veissier, in Knight/Phillips/Sparks (eds), Routledge Handbook of Animal Welfare1, 2023, 22.
military necessity and proportional to the expected military advantage (Art. 51 V lit. b) AP I and Art. 23 lit. g) HC). The proportionality of an attack requires a balancing of military need and civilian endangerment.47 However, an attack is only disproportional if it is „excessive in relation to the concrete and direct military advantage anticipated“ (Art. 51 V lit b) AP I).48 In the current conception of the formula, the value of a civilian object is measured in its value for humans.49 It underlines that animals in IHL are not considered because they are sentient beings, but for their mainly economic value to their human owners.50
This understanding of the value of an animal’s life, derived solely from its importance to humans (and their economic interests), is especially problematic for zoo animals.51 Zoo animals are not directly necessary for the survival of the human civilians (e.g. as food) and their value in the proportionality equation de lege lata has to be regarded as low.52 On the contrary, their life detrimentally depends on human care. To ensure that they are not suffering during times of war IHL would have to consider profoundly the value humans have for zoo animals, not the other way around.
II. Prohibition of unnecessary suffering in IHL
In IHL there is an explicit provision relating to the prevention of suffering. Art. 35 II AP I prohibits „to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering“. In a broad understanding, this could also include the prevention of animal suffering. The wording does not explicitly limit the scope to human suffering. Some even argue that this broad interpretation is founded in the historical origins of the provision.53 On the other hand, in state practice the wording is sometimes concretised to „human suffering“ or the „human body“.54
At the same time, even if zoo animals would be included in the scope of Art. 35 II AP I, it is doubtful whether this is sufficient. As has been shown above, zoo animals are particularly vulnerable during armed conflicts. They are heavily dependent on human care and cannot escape the artificial environment, they are put in. It is doubtful whether the vague clause of Art. 35 II AP I could create standards concrete enough to ensure their welfare. IHL has rules to protect humans or objects that are particularly vulnerable to the horrors of war, like defenceless persons and cultural and spiritual sites.55 The radical vulnerability of these protected groups is comparable to those of zoo
47 Shaw, International Law8, 2017, 907; Gasser/Dörmann, in Fleck (ed.), The Handbook of International Humanitarian Law3, 2013, 244 para. 509.3. In general for the application of the principle of proportionality see: Cannizzaro, in Clapham/Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict1, 2014, 336; Judge Higgins, International Court of Justice, Dissenting Opinion to Advisory Opinion, Nuclear Weapons, (n 21) para. 20.
48 There is no exact definition for „excessive“ in the context of Art. 51 AP I and the wording has been criticized as unclear, Sandow/Swinarski/Zimmermann (n 20), 625 para. 1977. Many authors note that the disproportionality has to be clear and not in doubt: Dinstein (n 37), 155 para. 417, Solis (n 23), 274.
49 Roscini (n 16), 51.
50 Peters (n 5), 348 et sqq.
51 On the general moral problems of instrumentalizing animals see for example: Sebo, Saving Animals, Saving Ourselves: Why Animals Matter for Pandemics, Climate Change, and Other Catastrophes1, 2022, 107–108.
52 de Hemptinne (n 22), 275; Peters (n 5), 368 et sqq.
53 Peters (n 5), 372 argues that a similar provision in a 1742 treaty between France and the Holy Roman Empire included the suffering of animals as well. On the other hand, Melzer (n 15), 109–110 argues that the provision was inspired by the 1868 St Petersburg Declaration that only focused on limiting the suffering of (human) combatants.
54 See for example International and Operational Law Departement, Operational Law Handbook, 2001, p. 8; Sandow/Swinarski/Zimmermann (n 20), Art. 35 AP I para. 1415 and 1419 Nr. 2; Office of the Judge Advocate General, Canada, Code of Conduct for Canadian Forces Personnel, 2024, pp. 1–1 para. 6. For an overview see: International Committee of the Red Cross, Weapons of a Nature to Cause Superfluous Injury or Unnecessary Suffering, available at https://ihl-databases.icrc.org/en/customary-ihl/v2/rule70.
55 Special protection is granted to defenceless persons (e.g. Art. 23 lig. g) HC, Art. 8 et sqq., 77, 78 AP I), important cultural and spiritual sites (e.g. Art. 27, 56 HC, Art. 53 I AP I) and the environment (Art. 35 III, 55 I AP I).
animals.56 Still, there are no positive rules in IHL ensuring for example that zoo animals are evacuated from war zones like children or get the special care and help they need like wounded or sick persons.
III. Conclusion
In conclusion, in contrast to the rules for the protection of people particularly at risk of suffering in times of war, corresponding provisions are missing for the protection of zoo animals. Because the general rule for the prevention of suffering in Art. 35 II AP I is vague and perhaps does not apply to animals in general, it cannot fill the regulatory gap. Furthermore, there are no clear rules on how to measure the welfare of zoo animals in the equations of proportionality and necessity. This makes it more than likely that the welfare of zoo animals will not play a sufficient part in military considerations.
D. D. Suggestions for a more adequate protection of zoo animals during armed conflicts
One suggestion is to reinterpret the current IHL law rules and consider zoo animals as persons, protected persons57 or at least sentient beings. These options would allow for animal welfare considerations to be part of the proportionality and necessity calculations.58 In this regard, international law could learn from existing animal welfare studies that already developed tools to measure animal wellbeing against the needs of humans.59 That said, this reinterpretation could be difficult to achieve in the current state as there is no international consensus to classify animals as sentient beings and individuals (yet).60
Therefore, others suggest a better protection of animals under the current system by improving the consideration of international animal protection treaties during armed conflicts.61 The IHL treaties themselves allow for the further protection of civilians and combatants by international treaties in cases not covered by them (e.g. Art. 1 II AP I). Furthermore, not all international treaties between conflicting parties are paused during armed conflicts.62 However, there is currently no consensus in public international law which treaty obligations persist to what extend during armed conflicts, so that a better protection of zoo animals is also difficult to achieve this way.63
All in all, the only adequate solution seems to be to change the existing IHL rules or make additional treaties to either ensure their special protection or regard zoo animals as protected persons in the sense of IHL.64
E. E. Conclusion
The article has shown that the circumstances of zoo animals in IHL is unique to humans and other animals suffering from the consequences of war. While they are one of the most vulnerable groups in times of war, IHL is yet lacking behind other fields of international law in considering animal welfare. Zoo animals are only protected as objects and valued by their worth to the humans possessing them, not for their intrinsic value. This does not allow for adequate animal welfare considerations implemented in the standards of military necessity and proportionality. Therefore, IHL is in urgent need of reform. Possible solutions would be to give animals in general the status of a subject in IHL or create concrete rules for implementing zoo animal welfare in the IHL principles of military necessity, proportionality and the prevention of suffering.
56 Peters (n 5), 404.
57 Suggested by Ibid., 398 et sqq. and 402 et sqq.
58 Roscini (n 9), 80.
59 See for example the CBA or QALY tests proposed by Sebo (n 51), 142–145.
60 de Hemptinne (n 22), 275.
61 Peters (n 5), 405 et sqq. Pipia (n 9), 199 et sqq.
62 See United Nations/ILC, Yearbook of the International Law Commission 2011, Vol. II, Part 21, 2018.
63 Pipia (n 9), 205.
64 Roscini (n 9), 90; Pipia (n 9), 205 et sqq.