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

en

Submission to the 95th Session of the Human Rights Committee: March 2009

Summary

CPTI wishes to draw three concerns to the attention of the Committee.

The
first is that the Law on Civilian Service, while excellent in some
respects, does not grant automatic recognition to those who declare a
conscientious objection to military but requires them to convince a
commission regarding the nature of their objections before permitting
them to opt for civilian rather than military service, and sets a
duration for civilian service which appears to be discriminatory and
punitive by comparison with that of military service.

The
second is that Switzerland retains a “military exemption tax”
which is imposed on male citizens who do not perform military
service. As CPTI exists in order to uphold the right of
conscientious objection to taxation for military purposes, it follows
that we deplore any system which imposes a military service
obligation in a financial form. Moreover this provision is
discriminatory and impinges on conscientious objectors to military
service in their exercise of their freedom of thought, conscience and
religion under article 18 of the Covenant.

The
third is that revisions to the Asylum Law are currently under
consideration which have the explicit intention of debarring from its
provisions conscientious objectors and others who are seeking asylum
in order to escape military service in countries where there is no
provision for conscientious objectors.

Background

Switzerland’s
armed forces remain based on the model of the “citizen’s
militia”. Article 13 of the Constitution prohibits the maintenance
of a standing army.1
Instead, all male citizens - in principle - are required to attend
an initial period of military training at around the age of 20,
followed by service in the mobilisation reserve until at least their
mid-30s. The latter usually entails keeping one’s uniform and
rifle at home, and turning out with them to regular target practice
and, at approximately two-yearly intervals, on refresher courses,
typically of seventeen days’ duration. With effect from the
beginning of 2004 the combined length of initial and reserve training
required of each conscript was reduced from 300 to 260 days; for
officers and NCOs the cumulative requirement is greater, and in the
case of officers the obligations continue until the age of 50.
Fully-paid leave of absence from civilian employment is normal during
reserve training. Only some 4,000 training personnel and officers
above the rank of brigade commander do not follow this pattern but
serve in the armed forces on a continuing basis. At any one time it
is estimated that between 20,000 and 25,000 conscripts are in
uniform, but a further 225,000 are available for mobilisation at 72
hours notice.2

As in
many other countries, there has in recent years been some debate
about the possible “professionalisation” of the armed forces, but
the constitutional changes which this would necessitate mean that,
unlike elsewhere, this is seen as a move towards rather than away
from militarism.

Another
feature which may be explained by the different military ethos was
that Switzerland was much later than its neighbours in accepting a
right of conscientious objection to military service. This was
conceded partially in 1991, when those who satisfied a military
tribunal that their refusal to perform military service was the
result of a “severe conflict of conscience” were permitted to
expunge the relevant criminal convictions by performing compulsory
labour of a duration one-and-a-half times that of military service,3
but it was only with the passage of a Civilian Service Law4
which took effect at the beginning of 1996 that conscientious
objection to military service was effectively decriminalised.

The Civilian Service Law

The
Civilian Service Law of 1995 gave the possibility for those for whom
military service would present a “severe conflict of conscience”
to apply to a civilian Commission reporting to the Ministry of
Economic Affairs for permission to perform a purely civilian
alternative service. This was an enlightened piece of legislation in
that the civilian nature of the alternative service was guaranteed by
placing all aspects of its administration outside the control of the
military authorities, and also in that no artificial time limits were
placed on application. Those who had already commenced their
military service - including those who were subject to reserve
obligations - were (and are) able to take advantage of the Law’s
provisions, receiving credit for the proportion of their military
service obligation which they had fulfilled. Two other aspects of
the Civilian Service Law are however not in accordance with best
international practice in this field. All those declaring a
conscientious objection have to appear before the commission in order
to establish their case - hence the “clarifications” of the
definition which it was seen necessary to introduce in 2003.5
And the duration of alternative service is set as at least one and
a half times that of the basic military service. There is no
evidence that this discrepancy is objectively justified6
therefore it would appear to be discriminatory and punitive in
nature.

Alarmingly,
proposals currently being discussed in the national parliament would
remedy one of these shortcomings only at the expense of a further
worsening of the other; the interrogation of conscientious objectors
would be dropped but accompanied by an increase in the minimum
duration of alternative service to 1.8 times that of the basic
military service.7


Moreover,
even civilian alternative service laws are not in every individual
case “compatible with the reasons for conscientious objection”.8
There is always a small minority who are not prepared to perform
even alternative service; in such cases Swiss law still permits
imprisonment: the annual total of such “absolute objectors”
sentenced to imprisonment in Switzerland during the period from 1999
and 2004 varied between 61 and 110. Most of the sentences were
short, and many commuted to labour, but the maximum sentence for
refusal to perform military service is 18 months.9
In 2005 a military court in Bern handed down a sentence of seven
months’ imprisonment on a young Jehovah’s Witness, identified as
“J”, who had failed to report for recruitment the previous
November.10

Military exemption tax

The
antecedents of the military exemption tax (Wehrpflichtersatzabgabe
/ taxe d’exemption du service militaire)
date back at least to
Article 3 of the military organisation law of 1907;11
the current arrangements were created by Law 661 of 12th
June 1959, Article 2 of the Law defined those subject to the tax as
all male citizens of the age group eligible for military service,
whether or not resident in Switzerland, who for more than six months
of a given tax year have - for whatever reason - not been attached to
a military or reserve unit, or who have failed to attend when
summoned to perform their military service. This meant primarily the
large number - since before 1990 about 50% of those eligible - who
were exempted from military service on medical grounds, or as clergy,
members of the Federal Assembly12,
or essential hospital staff. It also of course applied to
conscientious objectors who had persisted in their refusal to perform
military service notwithstanding criminal penalties. Perhaps in
response to anecdotes about disabled Swiss who begged that a suitable
assignment could be found to enable them to perform their patriotic
duty of military service, but who were nevertheless deemed unsuitable
and duly subjected to the military tax, revisions to the Law in 1994
exonerated the most severely handicapped persons. Other disabled
persons benefit from a 50% reduction in the rate, which, with effect
from 2004, was raised from 2% of taxable income, or Fr.150 if
greater, to 3% of taxable income, subject to a minimum payment of
Fr.200.13

With the
creation of Civilian Service in the mid-1990s, the Law was redrafted
so as to exclude those who fulfilled this alternative to military
service (this included the dropping of the word “military” from
its French title).14
A substantial redraft was necessary in 2002 as part of the overhaul
of the federal taxation system; it seems that in the process the
specific penalties for refusal to pay the tax - between one and ten
days imprisonment on each occasion15
- may have been lost.

The
Alternative Service Law meant that repeated imprisonment for
non-payment of the military tax became less of a focus for the
conscientious objection movement in Switzerland than it had been at
an earlier stage.16
Nevertheless, over and above its general discriminatory nature, this
tax still impinges on conscientious objectors in two ways. First,
only those who have been declared fit for military service and do not
qualify for any exemption are allowed to apply for recognition as
conscientious objectors. The concept is still recognised only in the
context of the performance of alternative service. In fact many of
those who in practice are not being called into the army would have a
conscientious objection to military service and for some this extends
to objecting to contribution to military expenditure. Second, it
impinges on “absolute objectors”. Whatever their sentences, such
persons also acquire a criminal record; the liability to a
supplementary tax represents yet another penalty resulting from the
exercise of the freedom of thought conscience and religion under
article 18 of the Covenant.

Revision of the Asylum Law

It will
be recalled that the UN Commission on Human Rights, in Operative
Paragraph 7 of its Resolution 1998/77, “encourages States, subject
to the circumstances of the individual case meeting the other
requirements of the definition of a refugee as set out in the 1951
Convention relating to the Status of Refugees, to consider granting
asylum to those conscientious objectors compelled to leave their
country of origin because they fear persecution owing to their
refusal to perform military service when there is no provision, or no
adequate provision, for conscientious objection to military service.”
In this the Commissiono was reinforcing the principles set out in
1979 by the United Nations High Commissioner for Refugees.17
The UNHCR has subsequently expanded with specific reference to
conscientious objection: “Where
military service is compulsory, refugee status may be established if
the refusal to serve is based on genuine political, religious, or
moral convictions, or valid reasons of conscience... In conscientious
objector cases, a law purporting to be of general application may,
depending on the circumstances, nonetheless be persecutory where, for
instance, it impacts differently on particular groups, where it is
applied or enforced in a discriminatory manner, where the punishment
itself is excessive or disproportionately severe, or where the
military service cannot reasonably be expected to be performed by the
individual because of his or her genuine beliefs or religious
convictions... In addition, the claimant may be able to establish a
claim to refugee status where ... the individual has a well-founded
fear of serious harassment, discrimination or violence by other
individuals (for example, soldiers, local authorities, or neighbours)
for his or her refusal to serve.”18

On 20th December 2005

Notes

19,
the Swiss Asylum Appeals Commission (Asylrekurs-kommission - ARK),
ruled in favour of an Eritrean appellant who had shown that he would
face the death penalty as a deserter if repatriated - a punishment
which was (reasonably) held to be disproportionate. Moreover, the
Commission took into account the findings by the European Court of
Human Rights20
and by Immigration Appeals Tribunals in the UK and elsewhere that the
treatment of deserters and military service evaders in Eritrea
constituted inhuman and degrading punishment contrary to Article 3 of
the European Convention on Human Rights.21


This
ruling has been blamed by politicians for the subsequent increase in
the number of asylum applications lodged by Eritreans - from 181 in
2005 to 1,207 in 2006 and 1,661 in 2007. In October 2007 the
Federal Justice and Police Department (EJPD22)
was instructed to begin work on a redraft of the Asylum Law.
Detailed drafting has still not been made public at the time of
writing, but according to an EJPD press release of 24th
October, 2007, the purpose of the proposed redrafting was to change
the existing law so that desertion from or avoidance of military
service could no longer be the sole grounds of an asylum claim.
Further explanations given in April 2008 by the responsible minister,
Frau Widmer-Schlumpf, and reported in the Neue Zurcher Zeitung
indicated that the lodging of what was deemed to be an ill-founded
asylum claim, or aiding and abetting this, was to be made subject to
criminal penalties and that the rules regarding the safety of return
to the country of origin would be reversed, so as to put the onus of
proof on the potential deportee.23


The
authors of the quoted account of these developments published by the
Swiss Refugee Council point out that the increasing number of asylum
applications from Eritreans is in fact a Europe-wide phenomenon, and
fear that if the proposed legislation is to fulfil the stated
objectives it may well conflict with Switzerland’s obligations
under the refugee convention. To this general concern CPTI would add
that it puts at severe risk many persons who have fled Eritrea where
the unusually severe treatment of declared conscientious objectors
and others who seek to avoid military service is very well
documented; that as reported it seems to make no allowance for the
specific protections refugee law gives to conscientious objectors
from states where they have no means of claiming such status; and
that its effect would appear to fall most heavily, and in a
discriminatory fashion, on declared and undeclared conscientious
objectors from the very state where they are at present most in need
of protection.


30th
December, 2008.



1
Haltiner, K.W. “Switzerland: Questioning the Civilian Soldier”
in Moskos C.C. & Chambers, J. W., ( 1993 ). The New
Conscientious Objection, from sacred to secular resistance.

Oxford University Press, New York/Oxford, pp135-145, at p136.




2
The Military Balance 2007 (International Institute for
Strategic Studies, London), p




3
Horeman, B. & Stolwijk, M., Refusing to Bear Arms , War
Resisters International, London, 1998.




4
RS 824.0 Loi fédérale du 6 octobre 1995 sur le service civil
(LSC)




5
See para 264 of the State Report (CCPR/C/CHE/3)




6
See the criteria set out in the Human Rights Committee’s
jurisprudence: Foin v France Communication 666/1995,
ICCPR, A/55/40 vol II (3rd
November 1999)




7
“Nationalrat gegen Gewissensunsinn”, Zivilcourage 4/08
, June 2008.
(http://zivildienst.ch/pdf/Zivilcourage/2008/Zivilcourage0408.pdf)




8
Commission on Human Rights Resolution 1998/77, Operative Paragraph
4.




9
Stolwijk, M., The Right to Conscientious Objection in Europe: A
Review of the Current Situation
, Quaker Council on European
Affairs, Brussels, 2005, p 69




10
“Militärdienstverweigerer soll für sieben Monate ins
Gefäangnis”
Zivilcourage 6/05 , October 2005.
(http://zivildienst.ch/pdf/Zivilcourage/2005/Zivilcourage0605.pdf)




11
Prasad, D. & Smythe, T. (1968), Conscription -a world survey:
compulsory military service and resistance to it
, War Resisters
International, London, p124




12
Exempted in the reforms of 4th October 2002, which took
effect at the beginning of 2004.




13
Law 661, Article 13, as revised by the Law of 4th October
2002.




14
Now “Loi fédérale sur la taxe d’exemption de l’obligation
de servir




15
See Horeman & Stolwijk, 1998, op cit.




16
See Prasad & Smythe, 1968, op cit p127




17
UNHCR Handbook on Procedures
and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees

UN Document HCR/IP/4/Eng/REV.1,
Chapter V, B. (paras 167 - 174)




18
GUIDELINES ON INTERNATIONAL
PROTECTION: Religion-Based Refugee Claims under Article 1A(2) of the
1951 Convention and/or the 1967 Protocol relating to the Status of
Refugees


HCR/GIP/04/06,
(2004), Para 26.




19
Decision reported in EMARK 2006 No. 3, pp29 et seq.




20
Said v Netherlands, Application No.2345/02, Judgment of 5th
July 2005.




21
Caroni, M. & Hofstatter, S., “Flüchtlingsrechtliche und
rechtsstaatliche Überlegungen zur geplanten Teilrevision des
Asylgezetses betreffend Desertion und Dienstverweigerung”,
ASYL
3/08
, (Swiss Refugee Council 7th August 2008).
(http://www.osar.ch/2008/08/07/eritrea_desertion)




22
Eidgenössische Justiz- und Polizeidepartement




23
Caroni, M. & Hofstatter, S., op cit .


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