Conscientious Objection to Military Service: Issues for the Country Report Task Forces - SPAIN

Submission to the 93rd Session of the Human Rights Committee: July 2008

Summary

Obligatory military service in Spain has been suspended since 2001. It appears however that this could be reinstated at any time, if considered necessary, even without the formal declaration of a state of emergency. In such an event, there is some uncertainty as to how the constitutional guarantee of the right of conscientious objection would be implemented.

There is also no indication of any provisions allowing the release of serving members of the armed forces who develop a conscientious objection.

Historical Background

The polarisation caused by the Spanish Civil War squeezed out the small pacifist and anti-militarist movement which had briefly flourished in the mid 1930’s. By May 1939 the movement was disbanded and the leading members had gone into exile.1 Writing in the late 1960’s, Prasad and Smythe reported that cases of conscientious objection to military service in Spain almost all concerned Jehovah’s Witnesses, with the exception of one portenteous instance where two conscripts had made a pact that they would refuse to obey orders once they had reported for their military service.2

It was not until 1971 that a broader campaign emerged, using a march from Geneva to Valencia to draw international attention to and support for the case of an imprisoned catholic conscientious objector, Pepe Beunza.3 The previous year, the government had proposed a law which would have made unarmed military service available to conscripts; it is alleged that this was the only government proposal which was rejected by the Cortes during the entire Franco period.4 A similar measure did pass into law in 1973.
Following the death of Franco, an amnesty was declared for all imprisoned conscientious objectors (these included Beunza, who had continued to suffer repeated imprisonments for refusing enlistment). In December 1976 a law was passed which recognised conscientious objection when based on religious grounds. The principle was incorporated in the 1978 Constitution, Article 30 of which stipulates, “The law shall determine the military obligations of Spaniards and shall regulate, with all due guarantees, conscientious objection as well as other grounds for exemption from military service; it may also, when appropriate, impose a community service in place of military service.”

In this respect, Spain did not follow the common pattern whereby the first concession to conscientious objection was the establishment of a civilian alternative to obligatory military service. The principle of conscientious objection was recognised, and the possibility of requiring alternative service added almost as an afterthought. In fact it was not until the end of 1984 that legislation5 appeared which linked a wider recognition of accepted grounds for objection to a formal system of alternative service.

The now vigorous conscientious objection movement split over its reaction to this legislation. Some welcomed and sought to co-operate with the new arrangements. Some conscientious objectors’ organisations sought to register their members collectively; initially such registrations were accepted, but as the numbers increased new regulations were brought in to eliminate this possibility. Even so, the number of individual applications for recognition as conscientious objectors was one of the highest recorded anywhere - by 1998 there were over 150,000, representing at least 56% of those becoming eligible for military service.6 Many objectors however rejected the alternative service out of hand, campaigning instead for a complete end to obligatory military service, and launched a campaign of insumisión, or civil disobedience. Many, perhaps 20,000 between 1988 and 1999, refused to perform either military or alternative service. One result was a reluctance on the part of many organisations to offer alternative service placements, which caused particular problems given the large number of applicants.7 Starting in 1997, a campaign (insumisión in carteles) carried the disobedience into the military barracks themselves; objectors would duly report for military service, but then collectively refuse to obey orders, sometimes staging an “occupation” of the barracks.8

The suspension of military service and the situation today

The Armed Forces Personnel (Regulations) Act, Act 17 of 18th May 1999, which suspended conscription into the armed forces with effect from 2003. In the event, implementation was brought forward, and the last group of conscripts completed their service in December 2001. Subsequently an amnesty was granted to some 4,000 persons awaiting trial for failing to report for military service and 20 charged with desertion for their actions after recruitment.9

Although Para 125 of the State Report (CCPR/C/SPA refers to the “disappearance of obligatory military service”, articles 163 and 178 of Act 17/1999 together create the possibility, in order “to meet the needs of national defence when these cannot be met by professional military staff”, of conscripting , as “compulsory reservists” all Spanish citizens aged between 18 and 25.10

Para 125 of the State Report proceeds directly from stating that the procedures governing conscientious objection to military service are no longer operative to announce that under Organic Law 2/1997 guarantees the right to persons working in the media industry to revoke their contractr of employment on grounds of conscience.

Objection to taxation for military purposes

The linkage between objection to performing military service and objeción fiscal -objection to contributing through taxation to military expenditure - was made at an early stage in Spain. Movements which had started in opposition to obligatory military service also co-ordinated campaigns whereby taxpayers would send to chosen non-governmental organisations working in peace and development areas either a proportion of their income tax liability equal to the proportion of the annual budget allocated to the Ministry of Defence, or a per capita equivalent (calculated as EUR84 in 2005). An entry is made in the “other deductions” section of the tax form, and accompanied by a proof of the payment. By 2005, it was estimated some 8,000 taxpayers were participating in such schemes, and the organisers estimated that in 90% of cases the tax authorities took no action.11 The payments were not returnable, therefore when the authorities did pursue and achieve the repayment of the outstanding amounts a considerable financial burden was accepted by those involved.

One test case arising from such action has now been taken through the courts. Joan Surroca, from Barcelona, faced a demand for the tax he had redirected in such a scheme, plus interest, plus a fine. He appealed to the tax authority, then to the Tribunal Económico Administrativo of Catalonia (TEARC), then to the Tribunal Superior de Justicia de Cataluña, which passed down its verdict in March 2006.12 The tribunal agreed that this form of tax diversion was not permissible, but as there was no dispute that Surroca had actually paid out the sum of money in question it cancelled the fine, ruling that his action was not tax evasion but a “gap of interpretation or a reasonable and divergent interpretation” which should not be punished. Surroca attempted to carry a further appeal to the constitutional court, but it ruled in September 2007 that the case was not admissible as no constitutional issue had been raised.

As with conscientious objection to obligatory military service, a large part of the Spanish fiscal objection movement has followed a radical policy of insumisión. At its assembly in the year 2000, the largest movement of conscientious objectors expressly rejected a campaign for “peace tax” legislation, on the basis that laws always serve the interests of the lawmakers, and that if the ultimate objective is the abolition of violent methods of conflict resolution, and in consequence the disappearance of armies or any other form whatever of social militarisation, they could not in all conscience conform with a law which allowed simply an individual opt-out.13

On the other hand, two Catalan political groupings (Esquerra Republicana de Catalunya, and Izquierda Unida-Iniciativa per Catalunya Verds) combined in 2006 to introduce in the Spanish Parliament a tax objection Bill (Proposicion de ley de Objeción Fiscal). This was voted down on on 28th June 2006.

Suggestions for the list of issues:

The state party might be asked to confirm whether the conscription of compulsory reservists envisioned in Article 178 of the Armed Forces Personnel (Regulations) Act might indeed be instituted in response to the manpower requirements of the armed forces without requiring any declaration of a state of emergency, and also what provisions for conscientious objectors would apply in this event.

The state party might also be asked whether it would consider extending the principle established in Law , quoted in paragraph 125 of the State Report, that conscientious objections might be grounds for release from a contract of employment, to the situation of professional members of the armed forces who develop a conscientious objection to military service.

14th June, 2008
Representative to the UN in Geneva:
Derek Brett
Avenue Adrien-Jeandin 18
1226 Thônex.
Tel./fax: 022 860 24 63
Email: dubrett@talk21.com

1 See Agirre, X. “Los Insumisos del 36: el movimiento antimilitarista y la guerra civil española” in MOC (movimiento objeción de conciencia), En legítima desobediencia: tres décades de objeción, insumisión y antimilitarismo, Madrid, 2002, pp. 27 -39.
2 Prasad, , D. & Smythe, T. (1968), Conscription -a world survey: compulsory military service and resistance to it, War Resisters International, London, p119
3 MOC, (movimiento objeción de conciencia), En legítima desobediencia: tres décades de objeción, insumisión y antimilitarismo, Madrid, 2002, pp 41-47 et seq.
4 Horeman, B. & Stolwijk, M., Refusing to Bear Arms , War Resisters International, London, 1998. (http//:wri-irg.org/co/rtba/archive/spain..htm).
5 Ley Orgánica 8/84 and Ley 48/84, both of 26th December.
6 Ajangiz, R., “The European farewell to conscription”, in Mjoset & Van Holde (Eds), The comparative study of conscription in the armed forces (Comparative Social Research, Volume 20), Elsevier Science, Oxford, 2002, pp.307 -333, see Table 5 on p.317 and Fig.2 on p.319. Other sources, perhaps by excluding those exempt on other grounds, quote even higher percentages, eg. Stolwijk, M., The Right to Conscientious Objection in Europe: A Review of the Current Situation, Quaker Council on European Affairs, Brussels, 2005, p.65. gives a figure of 120,000 in 2000, representing 70% of “eligible conscripts”.
7 Ibid., p321.
8 MOC, op. cit. p243 et seq..
9 Ibid, p 327.
10 See Initial report of Spain to the Committee on the Rights of the Child under Article 8, Paragraph 1 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (UN Document CRC/C/OPAC/SPA/1), 16th October 2006, paras 14 and 17.
11 CPTI News, January 2006 (www.cpti.ws)
12 Case no. 1077/2001; judgment (in Spanish) reproduced on www.cpti.ws
13 MOC op. cit. p.149. “Viendo lo que ha sucedido en el caso de la legislación sobre la objeción al servicio militar obligatorio, pensamos que las leyes se dictan siempre a favor de quienes las redactan. Si nuestro objectivo último es la abolición delos métodos violentos en la regulación de los conflictos y, en consecuencia, la desparación de los ejercitos y de cualquier otra forma de militarización social, no popdemos conformanos con una ley que nos permita objetar de forma individual.”