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ΑΝΤΙΡΡΗΣΗ ΣΥΝΕΙΔΗΣΗΣ

INITIATIVE FOR
CONSCIENTIOUS OBJECTION

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International Standards on
Conscientious Objection to Military Service

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Introduction

Conscientious objection to military service is not explicitly recognised in the international human rights standards. This has led some States to argue that it is not protected by them. However, this is not the case. The Human Rights Committee, the expert body which supervises the implementation of the International Covenant on Civil and Political Rights, is clear that conscientious objection to military service is protected under the right to freedom of thought, conscience and religion, and has stated so in Views (decisions) on individual communications,¹ in its General Comments² and in Concluding Observations.³ In addition, the (former) UN Commission on Human Rights adopted a series of resolutions on conscientious objection to military service, and the Working Group on Arbitrary Detention and the Special Rapporteur on Freedom of Religion and Belief of the UN Human Rights Council have also addressed the issue.

 

The right of conscientious objection to military service

The Human Rights Committee has recognised the right of conscientious objection to military service, as part of the right to freedom of thought, conscience and religion enshrined in Article 18 of the International Covenant on Civil and Political Rights. It has addressed the issue in many of its Concluding Observations on State reports, and in its cases, most significantly in the case of Yeo-Bum Yoon and Myung-Jin Choi v Republic of Korea.⁴ In this case, the Committee identified conscientious objection to military service as a protected form of manifestation of religious belief within Article 18(1) of the Covenant and held that the Republic of Korea had violated Article 18 by not providing for conscientious objection to military service for these two Jehovah's Witnesses.

The Committee definitively laid to rest suggestions that conscientious objection is not recognised in the Covenant either because it was not included specifically (an argument it had already addressed in its General Comment 22 on Article 18)⁵, or because of the reference to conscientious objection which is included in Article 8. Article 8 concerns the prohibition of forced labour; its paragraph 3 states that for these purposes, the term forced or compulsory labour does not include "any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors". The Committee stated "article 8 of the Covenant itself neither recognizes nor excludes a right of conscientious objection. Thus, the present claim is to be assessed solely in the light of article 18 of the Covenant".⁶

Article 18(1) of the Covenant, which covers both the right to freedom of thought, conscience and religion and to manifest it, is non-derogable even during times of national emergency threatening the life of the nation.⁷ Although some restrictions are permitted on the right to manifest one's religion or belief, these are only those set out in Article 18(3) of the Covenant, namely those which are "prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." The Human Rights Committee made clear that "such restriction must not impair the very essence of the right in question".⁸ Thus these possible limitations cannot excuse making no provision for conscientious objection to military service.⁹

Who may be a conscientious objector?

Although defined as a manifestation of religion or belief, this does not mean that conscientious objection to military service can only be based on a religious belief. The Human Rights Committee in General Comment 22 simply referred to situations where "the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief".¹⁰ However, the same General Comment gives a broad scope to the terms religion and belief, stating¹¹ "Article 18 protects theistic, non-theistic and atheistic beliefs, ... Article 18 is not limited in its applications to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions." The Committee has specifically addressed this issue in Concluding Observations on State reports under the Covenant, calling, for example, on a reporting State to "extend the right of conscientious objection against mandatory military service to persons who hold non-religious beliefs grounded in conscience, as well as beliefs grounded in all religions".¹²

Thus it is clear that although conscientious objection may be based on a formal, religious position, this is not required. Indeed, the Committee has made clear that no discrimination is permitted between the religion or belief on which the objection is based.¹³

Equally, a person may become a conscientious objector after joining the armed forces, whether as a conscript or as a volunteer. Such a situation may arise in the context of a change of religion or belief in general, or in relation to the specific issue of military service. The general freedom to change one's religion or belief is recognized in Article 18(1) of the Covenant,¹⁴ and Article 18(2) prohibits "coercion which would impair" the individual's freedom to have or adopt a religion. The UN Working Group on Arbitrary Detention considers that "repeated incarceration in cases of conscientious objectors is directed towards changing their conviction and opinion, under threat of penalty" and is thus incompatible with Article 18 (2) of the Covenant.¹⁵ The specific application was explicitly acknowledged by the Human Rights Committee, for example, when recommending the adoption of legislation on conscientious objection to military service to a reporting State, "recognizing that conscientious can occur at any time, even when a person's military has already begun".¹⁶ Similarly, the UN Commission on Human Rights has stated "that persons performing military service may develop conscientious objections" and affirmed "the importance of the availability of information about the right of conscientious objection to military service, and the means of acquiring conscientious objector status, to all persons affected by military service". ¹⁷

Decision-making process

The UN Commission on Human Rights has welcomed "the fact that some States accept claims of conscientious objection as valid without inquiry" and called for "independent and impartial decision-making bodies" where this is not the case.¹⁸ The Human Rights Committee has expressed concern about "determinations ... by military judicial officers in individual cases of conscientious objection"¹⁹ and has encouraged "placing the assessment of applications for conscientious objector status under the control of civilian authorities".²⁰ As already mentioned, no discrimination is permitted "among conscientious objectors on the basis of the nature of their particular beliefs".²¹

Punishment of unrecognised conscientious objectors

Unrecognised conscientious objectors may not be punished more than once for their continued refusal to undertake, or continue in, military service on grounds of conscience. The Human Rights Committee's General Comment 32²² on Article 14 of the Covenant specifically addresses the repeated punishment of conscientious objectors:

"Article 14, paragraph 7 of the Covenant, providing that no one shall be liable to be tried or punished again for an offence of which they have already been finally convicted or acquitted in accordance with the law and penal procedure of each country, embodies the principle of ne bis in idem. This provision prohibits bringing a person, once convicted or acquitted of a certain offence, either before the same court again or before another tribunal again for the same offence; thus, for instance, someone acquitted by a civilian court cannot be tried again for the same offence by a military or special tribunal. ... Repeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience."

The UN Working Group on Arbitrary Detention has addressed the prohibition of repeated punishment of conscientious objectors because of their continued refusal to undertake military service, finding repeated imprisonment to be arbitrary detention.²³ However, following the Human Rights Committee's views in Yeo-Bum Yoon and Myung-Jin Choi v Republic of Korea,²⁴ the Working Group stated²⁵ that the initial imprisonment of a conscientious objector to military service also amounted to arbitrary detention resulting from the exercise of rights or freedoms guaranteed by Article 18 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.²⁶

Alternative Service

Any alternative service required of conscientious objectors in lieu of compulsory military service must be compatible with the reasons for the objection, of a civilian character, in the public interest and not of a punitive nature. In addition to civilian alternative service, unarmed military service may be provided for those whose objection is only to personally bearing arms.²⁷ The term "punitive" covers not only the duration of alternative service but also the type of service and the conditions under which it is served.

The question of the length of alternative service in comparison to the length of military service has been the subject of a number of cases considered by the Human Rights Committee. The Committee has now made clear (Foin v France) that any difference in length must be "based on reasonable and objective criteria, such as the nature of the specific service concerned, or the need for a special training in order to accomplish that service."²⁸

Non discrimination

Both in relation to the specific aspects of conscientious objection and alternative service already highlighted, and more generally, it is clear that no discrimination is permitted against or among conscientious objectors. Not only is no discrimination permitted "among conscientious objectors on the basis of the nature of their particular beliefs",²⁹ equally no discrimination is permitted in law or practice between those who do military service and those who do alternative service as to the terms or conditions of service. Nor may conscientious objectors subsequently be subjected to discrimination in relation to any economic, social, cultural, civil or political rights because they have not done military service.³⁰

Rachel Brett
Representative (Human Rights & Refugees)
10 November 2008

Notes