The elephant in the courtroom: Civil rights group argues denying personhood to animals contradicts the rule of law

Some animals, such as elephants, orcas and chimpanzees, are extraordinarily cognitively complex. The Non-human Rights Project is fighting for these beings to be recognised as ‘persons’, which would grant them the right to freedom from captivity

Minnie was imported to the US from Thailand when she was only two months old (Animal Defenders International )

British Legal authority Albert Dicey once said: “Where law ends, tyranny begins.” American group the Non-human Rights Project (NhRP) is now testing how far the rule of law extends. They argue that withholding from sentient animals the right to freedom from unlawful imprisonment, contradicts the principle that the law should apply equally to all.

On 13 November, the NhRP filed a law suit of habeas corpus in Connecticut Superior Court on behalf of three elephants, Minnie, Beulah and Karen. Born in the wild in 1960s and 1970s, the elephants were brought to America and sold-on to Commerford’s travelling zoo in Connecticut. The Zoo has been cited over 50 times by the US Department of Agriculture for failing to adhere to the Animal Welfare Act.

The NhRP is asking the court to recognise the elephants are not things, but persons with rights, and to release them to a sanctuary. They are awaiting the judge’s response.

In previous law suits, in 2014 and 2016 respectively, an Argentinian court ruled captive chimpanzees Sandra and Cecelia were entitled to habeas corpus. In June this year, however, a Manhattan court denied the NhRP’s plea to secure habeas corpus for chimpanzees Kiko and Tommy.

NhRP president and chief attorney, Steve Wise, says the court’s decision was based on Black’s Law Dictionary’s incorrect definition of a person as someone with legal responsibilities as well as rights.

Wise said: “I asked if they had ever seen a five-year-old child.” He argued that Black’s definition was based on a misreading of another legal source. Black’s admitted their mistake but the court rejected the appeal, saying the NhRP had overlooked that chimpanzees aren’t human.

The NhRP has filed a lawsuit in Conneticut on behalf of three elephants, who are currently held captive in a travelling zoo (Animal Defenders International ) (Animal Defenders International)

Wise says that the word person “is not, never has been and never will be a synonym of human”. He says while some humans and all non-human animals have been categorised as things, things like corporations are categorised as legal persons.

He added: “Last year, New Zealand designated a river and a national park as persons. In 2000, the Supreme Court of India designated the holy books of the Sikh religion as a person.”

Wise says that because people classify chimpanzees and elephants as things, “these extraordinarily complex non-human animals are the subject of tyranny”.

He told me that elephants live indoors during the cold Connecticut winter. In the travelling circus, they are taken in trucks to North-east United States, where they live in a temporary shelter before being put in a fair.

He says: “They spend their days with people on their backs and then they’re walking around in circles with men with bullhooks, and that’s all they do.” Elephant experts Joyce Poole, Ed Stewart and Carol Buckley say the use of bullhooks causes physical and psychological harm.

Karen was born in 1981. Taken from Africa, she was sold on to Commerford’s in 1984. Beulah was born in Myanmar in 1967 and taken to the US sometime after 1969. Sold to Commerford’s in 1973, she has been made to give rides to adults and children – despite suffering from a foot disorder for several years.

Minnie was born in Thailand and imported to the US in 1972 when only two months old. She was bought by a petting zoo then sold in 1976 to Commerford, which now uses her in Indian weddings, photo shoots and films, as well as circuses and fairs. PETA documented an incident in 2000, when she was witnessed being struck in the face by an employee, provoking her to pin two of her handlers against a ramp. Minnie was found to have critically injured handlers while children were riding on her – on three occasions. The Zoo still forces her to give rides.

The use of bullhooks can cause physical and psychological harm in elephants (Fort Greene Focus)

Despite his concern at these conditions, Wise says that his focus is the animal’s rights, rather than their welfare: “Say Bill Gates kidnaps my wife and I seek a writ of habeas corpus against him. We’re not going to have a discussion in the courtroom about whether he can give her a better life than I can. The issue is going to be, is she there against her will or not?”

Wise says even if the elephants have adequate food and veterinary care, this doesn’t change the fact that they’ve been stripped of their autonomy. He emphasises that this is what happens when people are in prison. “An elephant in a travelling circus is a prisoner,” he says.

The NhRP cites detailed affidavits from elephant experts stating that elephants are autonomous beings who value their freedom. Karen McComb Professor of Animal Cognition and Communication at the University of Sussex says elephants share many capacities with humans that are characteristic of autonomy and self-determination. These include self-awareness, empathy and awareness of death.

‘An elephant in a travelling circus is a prisoner,’ says NhRP president (Animal Defenders International)

Wise finds it disturbing that judges appear to rule against the NhRP for arbitrary or irrational reasons. He says this should be of concern to everyone: “If you deny an autonomous being fundamental legal rights, arbitrarily or irrationally, what’s to keep you from denying my rights arbitrarily and irrationally?”

He says some of the courts recognise that some non-humans are extraordinarily cognitively complex, but decide we are still going to treat them as if they were automatons or slaves.

“That’s irrational. We have seen that before in the way that we humans have treated other humans, and it always leads to bad places and eventually people have to say, ‘Oh, we screwed up.’”

He cites the cases of native Americans such as Standing Bear, or enslaved Africans like Dred Scott who were not recognised by the courts as legal persons: “The men’s lawyers did not overlook the fact that their clients weren’t white,” says Wise. “It just wasn’t relevant to their status as legal persons.”

Wise adds: “At NhRP, we’re saying, ‘Look, we’re in the process of screwing up again.’ Let’s do the right thing now, and not wait a hundred years.”