International Standards on Conscientious Objection to Military Service

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