Conscientious Objection in International Law: an overview
Rachel Brett (LLM in International Human rights Law) is a British Quaker based in Geneva, Switzerland, where she is an Adviser to the Quaker UN Office, having just retired as their Human Rights & Refugees Representative after 21 years during which she helped to gain recognition of conscientious objection to military service as a human right. She serves on the War Resisters' International Right to Refuse to Kill Committee. Here, she gives as an overview of conscientious objection in international law.
Explicit international recognition of a right to conscientiously object to military service is relatively new with only two regional human rights standards doing so: the EU Charter of Fundamental Rights and the Ibero-American Youth Convention. However, older international and regional human rights treaties – specifically the International Covenant on Civil and Political Rights and the European Human Rights Convention – have been reinterpreted to include conscientious objection to military service, and various of the UN's human rights bodies and mechanisms have endorsed conscientious objection.
However, the international human rights system is not easy to understand. It can be difficult to assess which procedures are available for a specific case, and the possible benefits of using one process rather than another, either within the UN or between the UN and a regional system. This can lead to reluctance to use the system from those unfamiliar with it, or choices which might have been better if the relative advantages and weaknesses had been known.
In order to address these needs, in 2012, A Conscientious Objector's Guide to the International Human Rights System was produced by WRI, with the assistance of the Quaker UN Office, Conscience & Peace Tax International and the Centre for Civil and Political Rights. This online guide is available at http://co-guide.org in English and Spanish, and provides detailed, searchable and up to date information about the various international and regional standards and mechanisms and how to access them.1
The international recognition of conscientious objection is important not only because of its direct relevance to States' obligation to provide for conscientious objectors but also because it means that lack of provision may give rise to a claim for asylum under international refugee law.2
The key elements are that conscientious objection to military service has been recognised as part of the right to freedom of thought, conscience and religion. Although it may be based on a recognised religion or belief, this is not essential: it can be based on a personal religious or non-religious belief or grounds of conscience. Because it comes within the right to freedom of thought, conscience and religion it is not one of the rights which can be derogated from (suspended or restricted) in time of war or other emergency threatening the life of the nation. Military or defence authorities should not be the ones to decide on claims of conscientious objection nor responsible for any alternative service required of such objectors, which must be of a civilian character and under civilian control. Although questions of conscientious objection most frequently arise in relation to conscripts, the standards are clear that even those in the armed forces whether as conscripts or as volunteers/professionals and those in the reserves are also entitled to become conscientious objectors.
Because of the different nature of the UN and regional human rights mechanisms, different issues and situations can be taken up through different processes. For example, the UN Working Group on Arbitrary Detention has been active in taking up the individual cases of those detained, imprisoned, or, in the case of Colombia, rounded up and held by the military, finding that not only is repeated imprisonment not allowed, but that any imprisonment of a conscientious objector is a form of arbitrary detention. Both they, and the Special Rapporteur on Freedom of Religion or Belief, have taken up the lack of recognition of conscientious objection when they have undertaken country missions.
General lack of provision – or discrimination against or inappropriate provision for conscientious objectors – has been taken up by the UN Human Rights Committee during the reporting process of States which are parties to the International Covenant on Civil and Political Rights. A notable example of the impact of the Human Rights Committee's insistence that the Covenant protects conscientious objection to military service, was that this impacted on the Colombian Constitutional Court leading to its ruling that it was also protected by that Constitution. The Committee also takes up individual cases and has repeatedly held that the Republic of Korea is violating the Covenant by making no provision for conscientious objectors. A review of the situation there is awaited from the Korean Constitutional Court.
Unlike the UN human rights procedures, the judgments of the European Court of Human Rights – which covers all 47 Member States of the Council of Europe – are legally binding. Unfortunately, this does not mean that the Governments always comply with them. So far Turkey has failed to recognise conscientious objection despite a series of European Court judgements against it on this subject, but there are cases about this lack of implementation pending in the Turkish Constitutional Court. However, following the European Court's judgment in Bayatyan v Armenia and follow up action by the Court, Armenia has at last not only recognised conscientious objection in principle but provided a civilian alternative service for conscientious objectors.
It is clear, therefore, that the international and regional systems have been important in creating international acceptance of the right of conscientious objection to military service, and can be a useful factor in bringing pressure to bear on governments to introduce or improve provision and to resolve individual cases, but in themselves, they are unlikely to solve the problems. The best strategies usually entail a combination of work within the country with the use of international or regional procedures. The latter often combine the more legal treaty based processes with the intergovernmental/political ones, such as recommendations from other States in the UN's Universal Periodic Review, and/or the thematic or country special rapporteurs or working groups of the UN Human Rights Council. Indeed, much of the progress in establishing the international legal recognition of conscientious objection has come about because of the actions of individuals and non-governmental organisations.
1 Reference should also be made to Brett, Rachel 2011: International Standards on Conscientious Objection to Military Service [online], <http://www.quno.org/resource/2011/11/international-standards-conscienti…;, accessed 2nd July 2015.
2 See UNHCR Guidelines on International Protection No. 10: Claims to Refugee Status related to Military Service within the context of Article 1A (2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees. 3 December 2013, <http://www.unhcr.org/cgi-bin/texis/vtx/home/opendocPDFViewer.html?docid=529efd2e9&query=Guidelines%20No.%2010>,accessed 2nd July 2015 .