The NhRP international branch is working with law professionals from all over the world to determine the best legal routes for achieving our shared goal: actual legal rights for at least some nonhuman animals.
As the NhRP’s International Coordinator, I have the privilege of collaborating with an incredible group of people, both in the US and around the world. We exchange emails and use Skype and conference calls, and occasionally, the NhRP meets in person for legal working group meetings, special events, and training sessions. For me, however, the trip I recently took to Israel with NhRP President Steven Wise was my first time traveling as a representative of the NhRP. As an attorney who focuses on corporate, IP, and commercial transactions, I’m used to traveling for business, working long hours on closing one deal after the other. But this trip was different. I spent five days in Steve’s company, listening to him present the NhRP’s work two, sometimes three times a day and talk with diverse audiences about obstacles to recognition of nonhuman rights and potential strategies for securing them.
In Israel, Steve and I had the opportunity to meet face to face with the NhRP’s Israeli legal working group, led by Lee Weinstein and Lee Tel Ari, two impressive law students at Tel Aviv University, and Donna Minha and Amnon Keren, two brilliant lawyers. The Israeli legal working group works within the Environmental Justice and the Protection of Animal Rights Clinic at Tel Aviv University. We conducted legal research using Skype and email, and a few months into this process, we all agreed that it was time to meet in person and get the ball rolling on raising awareness and pushing things further. That is when Amnon, Donna, and I started planning Steve’s visit to Israel. We planned a day-long event at Tel Aviv University and somehow ended up with a much broader schedule, including a screening of Unlocking the Cage and lectures in nearly all the law faculties in Israel.
A few words about Israel
Known as the vegan capital of the world, Israel is home to progressive animal welfare regulation. For example, dissections of animals in elementary and secondary schools are prohibited, as well as circuses with trained animals, experimentation for cosmetic purposes, and the production of foie gras. But alas, there is still much room for progress. For example, having grown up in Israel, I still remember the many fights I endured as a child protecting stray dogs and cats on the streets, and today, the milk yield per cow in Israel is the highest in the world. Despite the abovementioned progress, animals are still considered property to be used by humans, and there are very limited actual prosecution efforts when abuse cases arise.
As anyone who follows the work of the NhRP knows, a legal person is merely an entity with the capacity for legal rights, and a legal thing lacks that capacity. As Justice Barbara Jaffe wrote in her ruling in the NhRP’s case on behalf of Hercules and Leo,
Legal personhood is not necessarily synonymous with being human … The concept of legal personhood, that is, who or what may be deemed a person under the law, and for what purposes, has evolved significantly since the inception of the United States … The determination of whether an entity or being counts as a legal person is largely context-specific, and not necessarily consistently made.
Many groups have been omitted from this category of things throughout history, such as corporations, women, and slaves. Today, to name a few examples, a river and a national park in New Zealand, the Amazon forest in Columbia, corporations, ships, cities, and states in the United States, and a mosque, a Hindu idol, and the Holy Books of the Sikh religion in India are all no longer things but rather persons holding legal rights.
In Israeli verdicts, courts have acknowledged the psychological suffering of animals, and Israeli law allows animal welfare organizations to file lawsuits on behalf of animals, similar to children’s custodians, which solves the standing problem that exists in most countries. The famous verdict banning the production of foie gras refers to nonhuman animals’ “right to life.” Such a right cannot possibly be held by a thing, so it is time to explicitly acknowledge the legal personality of animals and their entitlement to certain fundamental rights. As Judge Neil Hendel explains here: “The very preoccupation with a solution that will benefit a monkey, and certainly in a third round, attests to the evolving legal recognition of the issue of animal rights and their benefit in Israeli, general and Hebrew law.”
The Israeli research group’s initial conclusion was that there are several ways to argue for legal personhood for animals in Israel and thus secure their legal rights, and we then brainstormed and conducted more comprehensive research surrounding each possible approach.
One suggestion was to expand the current Animal Welfare Law to include rights recognition or promote new primary legislation that will acknowledge the fundamental rights of animals. One major obstacle to a legislative effort, however, is the politics surrounding it.
To give an example from the last several years, the failure of a proposed bill to ban the sale of fur in Israel is said here and here to be at least in part due to bribes from fur industry members to parliament members. In other words, the exploitation of animals enriches too many people with too many monetary interests for rights-based legislation to pass. The beauty of the common law system, however, is that it permits judges to create law in accordance with social and scientific advancement, and so, the approach most likely to be successful might be a petition to the Israeli Supreme Court, already known for its judicial activism. A Supreme Court Petition for Writ of Habeas Corpus is certainly an option we are looking into, and much research is underway. Some of the difficulties ahead of us include the fact that in Israel, the possibility to appeal a Supreme Court verdict is extremely rare and limited. Another obstacle is the translation of the word person into Hebrew from the Habeas Corpus Mandatory Courts Ordinance of 1940. However, justice has never never been easily achieved no matter the issue or cause, and in a common law system, as pointed out in Woods V. Lancet, courts hold “not only the right, but the duty to re-examine a question where justice demands it” and “bring the law into accordance with present day standards of wisdom and justice rather than with some outworn and antiquated rule of the past.”
It is important to acknowledge that Israel has long attracted and incited political controversies for human rights abuses, but this doesn’t mean we should or must postpone the fight for nonhuman rights. The fight against injustice, wherever it is found, is critical for everyone. Support for human rights and support for nonhuman rights go hand in hand because they are about respect for fundamental values and principles, such as liberty, autonomy, equality, and fairness. Whatever one’s political views, habeas corpus should serve as a door to justice for all, regardless of skin color, nationality, gender, religious beliefs, or species. There are many wrongs in this world, but those of us who care, usually care about all these wrongs and not just some of them, and that is how it should be.
Some of the conversations we had in Israel about nonhuman rights
Our visit to Israel started with a sold-out screening of Chris Hegedus and D A Pennebaker’s documentary about the NhRP, Unlocking the Cage, at the Tel Aviv Cinematheque, along with delicious vegan treats courtesy of Amnon. The audience was overwhelmingly supportive, and I was moved, once again, to watch footage of our caged chimpanzee clients and Steve fighting in court for recognition of their legal personhood and fundamental rights. The documentary is a powerful reminder that the law isn’t always right and that it can take a long time to achieve social justice. After the movie, Steve answered questions asked by the audience. One question was why did the NhRP choose chimpanzees as their first clients? Steve explained how chimpanzees are not native to the United States, and so there are far fewer chimpanzees in the United States, and thus far fewer parties with a vested interest in exploiting them. Therefore, the opposition we would encounter is less than that of, for example, a case representing a cow. Also, there is much research to be relied on when it comes to proving how autonomous chimpanzees are.
The following day, we were off to Tel Aviv University. We started off meeting the talented legal team researching the current legal situation in Israel. We came up with a few potential strategies and continued with a roundtable discussion of approximately 30 experts from various fields. They heard a brief introduction from Amnon Keren and me, followed by a presentation of the current legal situation in Israel presented by Lee Weinstein and Lee Tel Ari. We then heard from various experts such as Parliament Member Yael Cohen-Paran and the Chairman of the Israeli Lawyers Bar Animal Rights Committee, Advocate Ehud Peleg. It was wonderful to meet so many supportive people, but I must admit that I would have loved to hear a little more from every single one of these participants. They come from so many different, yet relevant fields, from anthropologists to legal scholars, animal welfare advocates and parliament members, and I am thankful to have their support and am sure that down the long legal path ahead of us, we may contact them again for assistance.
We then proceeded to a different auditorium, to an event that this time was open to the general public. Every single chair was occupied by people who were curious about our mission and work. Steve spoke for an hour and then took questions from the audience. The questions were varied, but the one that comes to mind right now is the question of whether we think that our chimpanzee clients should gain all the rights humans possess. Steve explained that we argue that, based on chimpanzees’ autonomy, courts should grant them the necessary and appropriate right to bodily liberty. We treat human children similarly: for instance, they can neither marry nor vote, but nevertheless they enjoy other fundamental rights.
After answering questions, Steve joined a panel at a long table on the stage. The panel consisted of fascinating scholars, including a well-known animal law attorney, a district court judge, and a primatologist, who spoke first. She made a point that even I had never thought of; she spoke of how highly intelligent and self-aware chimpanzees are and laughed at the fact that humans consider themselves the most intelligent species on earth when, chimpanzees, not us, are the ones capable of speaking another species’ language—human sign language.
Following the discussion, we were invited to a wonderful dinner in one of the many great vegan restaurants in Tel Aviv, where once again we were amazed by the supportive, intelligent people surrounding us.
First thing in the morning on Tuesday, April 10th, I dropped Steve off at a nearby café, where he spent two hours interviewing for Haarezt (“the country”) newspaper. After the interview, we headed to the Academic Center for Law and Science in Hod Hasharon, where we were directed into a room occupied by faculty members. We were greeted by a warm yet skeptical audience. Not a minute after Steve started speaking, a man interrupted him, raising his voice and his hand in a dismissive way, and asked: “Why are you saying it like that, nonhuman animals, are you saying I’m an animal?” Steve was ready to explain the definition and source of the word, but given that many of the faculty members were religious, I pulled out a quote from the Bible, explaining that humans are part of the animal kingdom. All of the members of the animal kingdom have a common need to survive, to breath, to live our lives free of pain and suffering. This core need then grows into various branches of consciousness and autonomy. Experts in various fields may argue about the extent of that consciousness and autonomy, but alas, as far as the law is concerned, it does not make sense that all nonhuman animals—even those we know are conscious and autonomous and suffer as we do when deprived of their liberty and experimented on—are things with no legal rights.
After the lecture at the Academic Center for Law and Science, Donna Minha accompanied us to the Minerva Center for Human Rights at the Hebrew University in Jerusalem, where Steve spoke to a smaller, enthusiastic crowd. One of the questions Steve was asked after his lecture was why he concludes that keeping a chimpanzee in a cage within a warehouse or an underground laboratory is not the same or even better for the chimpanzee as being kept in a five-acre sanctuary. In other words, Steve was asked how we could possibly measure the pain caused to another species, how we can decide for them what is best. Steve explained that there are many experts with sufficient expertise to testify to that extent, but it is also very clear that any autonomous being will prefer to be in an environment that respects her most essential needs such as for space and contact. This reminded me of a famous Israeli case, the Hamat Gader case, in which a lawsuit was brought by an animal welfare organization against a place called Hamat Gader, where a fight between the alligator’s handler and the alligator was presented as a show to the public. The alligator in that “fight” was tortured and the welfare organization asked the court to ban the show. The Magistrates’ Court ruled in favor of the petitioners, stating that “it is clear that the performance causes the alligator physical suffering.” On appeal, District Court Judge Alshech reversed the decision and, despite the expert affidavits proving the pain caused to the alligators, ruled that “no objective finding was shown to indicate suffering or pain to the alligator during the performance … Suffering, for technical reasons, is almost impossible to measure in an alligator.” Thankfully, on appeal, Supreme Court Judge Cheshin reversed the district court’s decision and ruled in the alligator’s favor, even taking it a step further and implementing three elements to test the abuse forbidden by the Israeli Animal Welfare Act, adding mental suffering to the equation. In other words, the higher court overturned what Judge Alshech presented as an insurmountable inability to verify the suffering of a nonhuman being.
After the visit to the Hebrew University, Steve had the brief opportunity to visit the wailing wall, after which Donna invited us to a wonderful dinner with her and Amnon.
Our next destination was to Haifa University on the following day. Haifa is approximately a two-hour drive from Tel Aviv, where Steve and I were staying. Dr. Itai Rofman, a captivating evolutionary anthropologist, kindly offered to give us a ride. We took the longer route from road 672, passing through Mount Carmel, while Dr. Rofman talked to us about his nearly decade-long research. I must admit that I my knowledge of early humans was extremely limited before meeting Dr. Rofman. With contagious enthusiasm, he explained how the discovery of a human jawbone in the Middle East contradicted the previous belief by which modern humans first appeared in East Africa only around that time frame. I now know that although Neanderthals are commonly considered a distinct species (Homo Neanderthalensis), their DNA is 99.7% identical to modern day humans. With chimpanzees, classified as Pan, we share about 99% of our DNA.
After my well-needed evolutionary lesson, we arrived Haifa University’s law faculty, where Steve lectured in a full auditorium consisting of students from the Social Change Clinique. Although they revealed a different kind of social change by the constant use of their phones during the lecture, they were nevertheless captivated by Steve’s talk.
In the afternoon, we headed to Natanya Academic College, where Steve spoke to the faculty members. As soon as we arrived, we were delighted to meet a keen professor who wrote a legal review article about the state of the Writ of Habeas Corpus in Israel, and were pleased to hear that his first draft of the article included a chapter about nonhuman animals and the writ. I am certain our paths will cross again!
Steve’s final lecture was on April 12th in front of the honor students of the College of Law and Business in Ramat Gan. What a smart bunch! Steve spoke for 90 minutes, and when he wanted to stop and allow time for a few questions, they asked him to continue. Their questions focused on legal strategy and a deeper understanding of our legal efforts. For example, one student asked why we are not working through existing channels, such as modification of the current Animal Welfare Act. As I mentioned above, regulation is a politically driven mechanism that, depending on the objective, may present too many obstacles for the purpose of achieving justice. Also, animal welfare laws merely regulate the manner in which humans can exploit nonhuman animals. A compromise may be achieved in many different ways, but any such compromise would mean that the nonhuman animal at hand will remain a thing. Many countries, such as France and New Zealand, recently added an acknowledgement in the law, recognizing certain nonhuman animals as sentient. Some may argue of certain benefits to such a recognition, but at the end of the day, it does not change the fact that those nonhuman animals, now recognized as sentient, still lack the capacity for legal rights. History proves that the only way to protect the fundamental interests of any entity is by recognizing her personhood. The NhRP argues that any entity that is autonomous should be recognized as a person with the fundamental right to bodily liberty. Another question was why the NhRP focuses on autonomy. Steve then explained how, from a legal standpoint, a person is any entity that has the capacity for legal rights, and our argument is that autonomy is a sufficient, but not a necessary, quality for personhood. There is sufficient scientific evidence proving that at least all great apes, elephants, and orcas possess that autonomy that is sufficient for personhood and the fundamental legal right to bodily liberty.
My reflections on nonhuman rights in Israel and beyond
Now more than ever it is critical to reevaluate our relationship with nature. We all evolved from the same root and share DNA with every other form of life on this planet, from bacteria to elephants. This highly developed intellect of ours must go hand in hand with a responsibility towards other beings because our existence, and theirs, depend on it. We are not the only beings with personalities and emotions, but under the assumption that we are separate from nature, that nature is there for us to use as we please, we’ve been exploiting the earth and all living beings upon it for far too long.
The urgency of these issues, and progress being made, can be seen in several court rulings. The most recent examples are the verdict in Columbia granting legal personhood to the Amazon forest, the case in Argentina granting legal personhood to a chimpanzee named Cecilia, and the opinion issued in our New York chimpanzee rights cases in which the judge wrote that “there is no doubt that [a chimpanzee] is not merely a thing.”
In the Amazon case, the judge gave the president and the minister of environment four months to come up with a plan to entirely cease the deforestation in the Amazon and work with scientists to come up with a plan for the future life of the Amazon. They court gave them 48 hours to get started! In the Argentinian case, when Judge María Alejandra Mauricio recognized Cecilia as a legal person, she said: “If we take care of her wellbeing, it is not Cecilia who will owe us; it is us who will have to thank her for giving us the opportunity to grow as a group and to feel a little more human.” Judge Mauricio understands that we are part of nature, that one cannot exist without the other, and in determining that Cecilia is a legal person deserving certain legal rights, Judge Mauricio sees the value in true legal protection. Judge Fahey of the New York Court of Appeals echoed this sentiment in his opinion in the NhRP’s cases on behalf of Tommy and Kiko:
Does an intelligent nonhuman animal who thinks and plans and appreciates life as human beings do have the right to the protection of the law against arbitrary cruelties and enforced detentions visited on him or her? This is not merely a definitional question, but a deep dilemma of ethics and policy that demands our attention. To treat a chimpanzee as if he or she had no right to liberty protected by habeas corpus is to regard the chimpanzee as entirely lacking independent worth, as a mere resource for human use, a thing the value of which consists exclusively in its usefulness to others. Instead, we should consider whether a chimpanzee is an individual with inherent value who has the right to be treated with respect.
Transforming certain beings from objects to subjects, recognizing that other beings have the capacity for rights and that they can enforce those rights, will not only protect those beings from injustice, but will, in the long run, protect humans as well because doing so will affirm and strengthen the principles that underlie human rights around the world.
Born in Israel, a country created as a safe haven, I am personally hopeful that nonhuman animals, in addition to other oppressed groups, will find safe haven there as well. As the Israeli Judge Daniel Fish explains here: “The law should advance from concepts that reflect merely compassion towards nonhuman animals to concepts that will recognize that nonhuman animals enjoy certain independent legal rights.”