A Conscientious Objector's Guide to the UN Human Rights System


A Conscientious Objector's Guide to the UN Human Rights System

Emily Miles

Quaker United Nations Office, Geneva
War Resisters' International


About this report...

This report was commissioned by QUNO, the Quaker United Nations Office in Geneva, and has been published by CONCODOC in London.

Quaker United Nations Office, Geneva

The Religious Society of Friends (Quakers) has had a presence in Geneva since the 1920s, and the Quaker UNOffice was established there in the 1940s. Quakers have a long history of being, and working with, conscientious objectors to military service. Quakers have always supported a nonviolent approach to the management and resolution of conflict. Their pacifism is based on the religious belief that there is that of God in every person.

The Quaker UN Office in Geneva has programmes on peace and disarmament, trade and development, and human rights and refugees.

CONCODOC

CONCODOC (Conscription and Conscientious Objection Documentation) is a new, multi-agency intitiative to facilitate, comission, publish and compile research on human rights and social concerns in connection to the military and militarism in society. It particularly concerns itself with the provision of data appropriate to the needs of those seeking asylum to escape military persecution.

Also currently available from CONCODOC:

  • Horeman, Bart. 1998. Refusing To Bear Arms : a world survey of conscription and conscientious objection to military service. CONCODOC, London. ISBN 0 903517 16 7

Copies available from War Resisters' International, 5 Caledonian Road, London N1 9DX, Britain (Tel +44 20 7278 4040; Fax +44 20 7278 0444; email concodoc@wri-irg.org; website wri-irg.org).

CONCODOC is sponsored by:

War Resisters' International

War Resisters'International (WRI), created in 1921, is a world-wide network of independent organisations, groups and individuals who all accept the WRI declaration: War is a crime against humanity. I am therefore determined not to support any kind of war, and to strive for the removal of all causes of war. WRI promotes nonviolent actions against the causes of war, and supports and connects people around the world who refuse to take part in war. Today there are around 80 groups in 35 countries affiliated to WRI.

European Bureau for Conscientious Objection

Acknowledgements

With many thanks to:

Tim Brown, Shamle Begum and Bart Horeman for providing comments on rather lengthy drafts, Lucia Brandi for bringing War Resisters' International into the picture, and Lucia Brandi, Helga Weber, Wolfgang Weber-Zucht, Andreas Speck, Chris Booth, Albert Beale, Roberta Bacic, Joanne Sheehan, Jose Maria Flores Chamorro and all at WRI for proofreading, layout, production and distribution.

Also to:
Brian Phillips for his encouragement, Paul Vernon for some great help and advice on layout, Jenny Pickrell and Jonathan Hepburn for assistance at the Quaker United Nations Office, Jo Constable for work previously done on conscientious objection and the Human Rights Committee, and Jane Winter for a handbook on the human rights system which gave me a lot of useful information on making submissions, and some excellent ideas.

I would like to express thanks to UN staff who helped me with mandate descriptions, particularly Alfred de Zayas, Patrice Gillibert, Markus Schmidt and Miguel de la Lama.

The biggest credit must go to Rachel Brett whose idea this was, who supervised the project and who tirelessly read several drafts whilst being extraordinarily busy on the issue of child soldiers.

Apologies

New resolutions get passed, people move on, new mechanisms are created, phone numbers change... I can't guarantee the accuracy of the information here. The final authority on submitting information to the UN will be the staff person administering that mechanism, and they should be your first -- and last -- port of call.

Emily Miles, January 2000.

Before you start

Acronyms

CAT Committee Against Torture
CERD Committee for the Elimination of Racial Discrimination
CHR Commission on Human Rights
CO conscientious objector, or conscientious objection to military service
ECOSOC UN Economic and Social Council
ICESCR International Covenant on Economic, Social and Cultural Rights
ICCPR International Covenant on Civil and Political Rights
NGO Non-governmental organisation
OP Operative Paragraph
PP Preambular Paragraph
UDHR Universal Declaration of Human Rights
UN United Nations
UNHCR (Office of) United Nations High Commissioner for Refugees

Conscientious objection to military service -- can the UN help?

The United Nations can and does play a role in monitoring State practice of the right to conscientious objection to military service.

This handbook describes the ways in which you can use the United Nations when the right to conscientious objection has not been recognised or has been implemented in an unfair manner.

The right to conscientious objection has been recognised by the United Nations

Although the right to conscientious objection is not explicit in either of the key human rights treaties (the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights), it has been recognised as a right by the United Nations. The Commission on Human Rights recognised the right to conscientious objection in 1989, and has reaffirmed the right in four resolutions since then. The Human Rights Committee affirmed the legal basis of the right to conscientious objection in 1993.

The UN monitors the way in which conscientious objectors are treated

But the UN does not just recognise the right for individuals to object to performing military service on the grounds of conscience. The UN also oversees the ways in which conscientious objectors are treated. International law and agreed best practice provides, amongst other things, for non-discrimination, equal remuneration, a fair trial, non-punitive lengths of alternative service, and alternative service of a genuinely civilian character. The UN has a role to play in ensuring fair treatment of conscientious objectors.

Cases and state practice can be examined by UN mechanisms

How can the UN do this? The United Nations has mechanisms for monitoring the maltreatment of conscientious objectors or non-recognition of the right to conscientious objection. Individual cases can be brought to the UN under several case-based procedures. In addition to individual cases, state laws and practice can also be challenged at the UN, through mechanisms for scrutinising the legislation and behaviour of States.

As yet, conscientious objection to military service has not been a subject that preoccupies the United Nations human rights machinery to the same extent as, say, torture or arbitrary execution. The purpose of this handbook is to encourage and enable more people to increase their use of UN human rights machinery for cases of conscientious objection. The standards are in place, but the machinery is not used to ensure that the standards are implemented.

Certainly, there have been successes. Conscientious objectors without the possibility of alternative service have been mentioned by the Special Rapporteur on Religious Intolerance in his annual report to the Commission on Human Rights. The Human Rights Committee has considered individual cases of conscientious objectors, and regularly asks States questions about their practice with regard to conscientious objection. The Commission on Human Rights regularly passes resolutions elaborating best practice for COs. But there is a visible gap where machinery could be used more effectively to the benefit of conscientious objectors suffering around the world. The main reason for this gap is that the UN procedures are not being supplied with information from non-governmental organisations and concerned individuals.

This handbook is intended to provide the campaigner, the victim and the lobbyist with some of the tools they need to submit information to the UN human rights machinery, including:

  • details of the international standards which recognise the right to conscientious objection;
  • details of the international standards which regulate the practice of the implementation of the right to conscientious objection;
  • information on how the UN mechanisms work;
  • advice on the effectiveness and appropriateness of different mechanisms;
  • advice on what information to put in a submission to the UN;
  • names and addresses of the people to whom information should be sent.

How to use this book

The UN human rights system is complicated. Different mechanisms have their own processes, requirements and potential outcomes. The system has grown up organically, not in a planned way, so there are many inconsistencies. This means that the quantity of information in this handbook may seem bewildering at first.

Don't read it all in one go

This handbook is meant to be 'dipped into'. It has most of the information you will need to prepare yourself for sending a submission to the UN human rights system. You will need different parts of the book at different stages in your preparation.

For example:

  1. You may want to start by finding out which international standards apply to conscientious objection. All the information for this is in Section two, 'Background information on international law for conscientious objectors'.
  2. Then you may decide that you know of a case or you are in a country situation which the UN should hear about. This means you'll need to work out which mechanism is most appropriate for your case. Use the exercise called 'Working out which mechanism is most suitable to your case to decide which one. Then use the rest of Section Three to find out more about that particular mechanism. This section is called 'How to use the UN: rapporteurs, treaty bodies and other mechanisms'.
  3. Having decided which mechanism will receive your submission, you need to find out what format you should send it in. For this, see the section 'Making a Written Submission'.
  4. Reference materials are available as an appendix to this file in the fourth section so that you can refer to original texts of law and resolutions without having to look them up.

Use the glossary

If you are confused by any of the concepts or terminology at any time, check out the 'glossary' at the back of the book in the 'reference materials' section.

What outcomes can I expect?

The UN human rights system's purpose is to monitor States' compliance with human rights standards. Given the shortage of financial resources for UN fact-finding, information received from non-State sources like NGOs is vital for this monitoring.

Sending information to the UN is no guarantee that your case will be resolved or the outcome you desire will be achieved. But not sending information to the UN means that the UN does not have a chance to get involved in poor CO practices around the world. The UN has standards relating to conscientious objection. Monitoring those standards relies on information.

There are a series of potential outcomes from sending a submission to the UN

  • Urgent Action

A rapporteur communicates swiftly and directly to the government abusing the CO's rights and demands a cessation of a life-threatening or rights-threatening situation.

  • Communication between the UN and a State

A rapporteur or working group communicates directly with the relevant State asking for further information on allegations of poor CO practice. A co-operative dialogue can follow.

Or a treaty body will review the practice of a State when the State Party comes before it for one of the regular reporting sessions. Direct questions about CO practice may be asked to diplomats representing that State. A concluding comment to the session, written by the treaty body, might include recommendations for improved State practice in the area of the right to conscientious objection. Once these recommendations have been made, follow-up questions will be asked the next time the State comes before the treaty body.

  • Publicity for a Case

The case may be mentioned in a rapporteur's annual report to the Commission and governments, NGOs and press from all round the world will read this.

  • Ruling on an individual case

The Human Rights Committee can hear the circumstances of an individual case under its first optional protocol. If they decide in the Complainant's favour, they may recommend action a State should take.

  • Extra Pressure on a State

All of these outcomes put pressure on a State to change its practice. Once a case or situation in a country has been highlighted at the UN, the State concerned will feel under pressure from the international community to improve its practice. The pressure can come from an individual rapporteur asking for comments in a case, a treaty body asking diplomats for their comments, or even a local NGO pointing out the difference between a State's voting record at the UN and its internal practice.

There are 6 main ways of increasing pressure on a State.
  • communication with the errant government by a UN-appointed body or individual;
  • press coverage of UN sessions, reports or actions;
  • resolutions of the UN asking for improvements in a State's practice;
  • State-to -State actions -- bilateral pressure by diplomats from other influential countries;
  • an investigation launched into the situation of human rights in a country;
  • scrutiny of CO practice by a treaty body.
Will my government respond to the pressure?

Yes, your government will respond to the pressure. It may refute allegations or ignore criticisms, but this in itself is a response. Sometimes your government will also improve its practice.

There is no way of forcing governments to act as the UN human rights system says it should. There is no international police force, and the UN Charter strictly restricts military intervention by the UN.

However, governments are under obligation to act in line with their international commitments, and most feel this sense of obligation very strongly. This can be seen by their massive attempts to rebut criticism.

The UN acts like a spotlight. NGOs provide the electricity, the fuel, and work to point the spotlight in a particular direction. A government under the spotlight usually seeks to get out of it.

Is it generally true that verbal condemnations by the United Nations without sanctions are in fact cost-free to the alleged violator? Consider the Communist Party defections in the wake of the condemnations of Soviet action in Hungary, Czechoslovakia and Afghanistan, the reputed effect on Iranian leaders of the unanimous vote of disapproval of the hostage-taking, the criticism by European allies of American actions in Grenada after the General Assembly vote of condemnation. True, it may be difficult to judge the relative effect of a UN vote compared to other factors or to assess its long-range impact. But the examples given suggest at least the need for caution in assuming that condemnations are generally without political costs to the accused state.

Oscar Schachter, Editorial Comments,
American Journal of International Law, 1984

What preparation do I need to do?

1

Work out which international law or standards relating to conscientious objection have been violated or ignored.

2

Work out which mechanism you should use for your submission by using Section Three. Make sure that the mechanism you have chosen applies to the State you are writing about.

Start preparing your submission. Use this section to ensure you follow the rules of procedure for the mechanism or treaty body you have chosen. Also use this section to find out what you should put in your submission. Gather relevant documents.

3

Familiarise yourself with relevant dates and deadlines by contacting the relevant staff person in Geneva at the Office of the High Commissioner for Human Rights. Take these into account in your planning.

4

Familiarise yourself with relevant dates and deadlines by contacting the relevant staff person in Geneva at the Office of the High Commissioner for Human Rights. Take these into account in your submission.

5

Send off your submission and follow up with the appropriate staff person to check that it has arrived.

Background information on international law for COs

Summary of standards which apply to
conscientious objection

The right to conscientious objection and rights relating to conscientious objectors can be found in:

1. The Universal Declaration of Human Rights

2. Treaties

3. Resolutions of the Commission on Human Rights and the General Assembly

A summary of the rights and their sources is in the table below.

Right

UDHR

Treaty law

Resolutions of CHR

to conscientious objection

18

ICCPR 18

1998/77, 1995/83, 1993/84, 1991/65

not to be discriminated against

2

ICCPR 2, 26, 18 (Gen Comm 22 para 11)
ICESCR 2(2), CERD


to equal remuneration for equal work

23

ICESCR 7 (a) (i)


to equal access to promotion

23

ICESCR 7 (c)


to social security

22

ICESCR 11


to adequate housing & living conditions

25

ICESCR 11


highest attainable standard of health


ICESCR 12


to education

26

ICESCR 13


to take part in public affairs

21

ICCPR 25


to life

3

ICCPR 6

1998/77 PP2

to freedom from
torture

5

ICCPR 7, CAT


to liberty of movement

13

ICCPR 12

5

to fair trial by
independent tribunal

10

ICCPR 14

1998/7 OP2 and OP3

to presumption of innocence until proven guilty

11(1)

ICCPR 14


not to undergo heavier penalty than one in force at time of offence


ICCPR 15


to freedom from
arbitrary detention

9

ICCPR 9

1998/77 OP5

to asylum

14

1951 Refugee Convention + 1967 Protocol

1998/77 OP7 + UNHCR handbook GA 33/165

to alternative service



1998/77 OP4

to non-punitive alternative service


ICCPR 18 +
Gen Comm 22

1998/77 OP4

to CO on religious or other grounds


ICCPR 18 + Gen Comm 22

1998/77 PP4

to develop CO during service



1998/77 PP5

to be informed by government about possibility of acquiring CO status



1998/77 OP8

Notes to the table

CAT Convention Against Torture
CHR Commission on Human Rights
GA General Assembly
Gen Comm General Comment of the Human Rights Committee
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
PP Preambular Paragraph
OP Operative Paragraph
UDHR Universal Declaration on Human Rights
UNHCR United Nations High Commissioner for Refugees

Standards which recognise the right to conscientious objection

This subsection looks at the standards recognising the right to conscientious objection itself, as found in treaties, resolutions and UN practice.

In treaties

The right to conscientious objection to military service is primarily derived from the right to freedom of thought, conscience and religion. This right is found in article 18 of the 1948 Universal Declaration of Human Rights, and was codified in article 18 of the International Covenant on Civil and Political Rights (ICCPR) in 1966. The right in this instrument is stated as follows:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.

Article 18, ICCPR

This manifestation of thought, conscience and religion includes conscientious objection to military service on religious, moral, ethical, political and similar grounds.

Article 18 of the Covenant does put some limits on the right, stating that manifestations must not infringe on public safety, order, health or morals. Some states argue that such limitations would permit them to make conscientious objection during time of war a threat to public safety, or mass conscientious objection a disruption to public order, or even that it is a 'moral' duty to serve the state in its military.

Whatever their arguments, the right to conscientiously object is indisputable. In 1993, the Human Rights Committee agreed a General Comment relating to article 18, the article regarding freedom of thought, conscience and religion:

The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief.

UN Doc HRI/GEN/1/Rev.1 at 35 (1994)

A larger extract from the General Comment is in the Reference Materials section of this Handbook, on page 80.In resolutions

The most recent resolution of the Commission on Human Rights on the right to conscientious objection to military service was passed in 1998. This resolution

draws attention to the right of everyone to have conscientious objections to military service as a legitimate exercise of the right to freedom of thought, conscience and religion, as laid down in article 18 of the Universal Declaration of Human Rights and article 18 of the International Covenant on Civil and Political Rights.

The resolution was adopted without a vote, indicating the general support of the member states of the Commission with regard to this matter. The text of the resolution is in the Reference Materials section of this handbook on page 81. It is expected that another resolution will be passed in 2000. Check the Office of the High Commissioner for Human Rights' website for more details: http://www.unhchr.ch.

In practice

One practical example confirms the commitment of the United Nations to recognising the right to conscientious objection to military service. The United Nations Special Rapporteur on Religious Intolerance is mandated to consider 'violations of freedom of thought, conscience and religion or belief' and in particular the question of conscientious objection. He regularly includes questions of conscientious objection in his annual reports to the Commission on Human Rights and the General Assembly.

Most appropriate mechanism if the right to conscientious objection is not respected

If the right to conscientious objection itself is not respected, the most appropriate body to deal with it will be the Human Rights Committee. If the state in question is not party to the International Covenant on Civil and Political Rights, then other mechanisms will need to be used instead.

See the subsection on the Human Rights Committee at page 36 for further details.

Standards which expand on the right to conscientious objection

Non-discrimination

Non-Discrimination in general

The first article of the Universal Declaration of Human Rights states unequivocally that 'all human beings are born free and equal in dignity and rights'.

Article 2 asserts:

everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, language, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In article 2 of the International Covenant on Civil and Political Rights (ICCPR), States undertake to respect and ensure the rights in the ICCPR to all individuals:

without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Furthermore, the ICCPR states in article 26 that 'all persons are equal before the law and are entitled without any discrimination to the equal protection of the law'. By ratifying the treaty, States undertake to ensure that the law prohibits discrimination and will guarantee protection against discrimination to all.

Most appropriate mechanism: Human Rights Committee

The International Covenant on Economic, Social and Cultural Rights (ICESCR) also reaffirms this right to non-discrimination, both in general terms of all the rights in the Covenant and relating to specific rights such as the right to education and the right to equal opportunity of promotion (see below under economic rights).

One Convention entirely about equality is the Convention on the Elimination of Racial Discrimination which simply condemns racial discrimination and expects States Party to pursue a policy of eliminating it.

Most appropriate mechanism: Committee for the Elimination of Racial Discrimination
Non-discrimination and conscientious objectors

The most recent resolution of the Commission on Human Rights on conscientious objection, passed by consensus in 1998, relates non-discrimination to conscientious objection:

6 ...States, in their law and practice, must not discriminate against conscientious objectors in relation to their terms or conditions of service, or any economic, social, cultural, civil or political rights.

Resolution 1998/77

The applicability of non-discrimination to conscientious objectors is also made crystal clear by the General Comment 22 of the Human Rights Committee on Article 18 of the ICCPR:

When this right (to conscientious objection) is recognised by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise there shall be no discrimination against conscientious objectors because they have failed to perform military service.

An individual who has been granted the status in law of a conscientious objector cannot be treated differently from another CO purely because the first CO's objection is based on a religious pacifism, and the second is based on a socialist pacifism. Just as there should be no differentiation between conscientious objectors, the General Comment states there should also be no discrimination against conscientious objectors because of their failure to perform military service.

Most appropriate mechanism: Human Rights Committee
Possibilities for action

Is it discrimination when alternative service lasts longer than military service? Although the official view of the Human Rights Committee on this matter is that, where there is no requirement to prove the conscientious objection, an alternative service of twice the length of military service is fair (View on Järvinen v Finland), individual members have stated opposing opinions. When France told the Committee in 1997 that the alternative service was twice the length in order that people could prove their convictions, one committee member responded by asserting that there were surely fairer ways for people to prove their convictions. (CCPR/C/SR.1599 at 58). Following on from this line of thinking, where a State undergoes a complicated and long process to test an individual's convictions such as that employed by Italy, a longer alternative service is likely to be considered unnecessarily punitive. This element of discrimination in relation to conscientious objection needs further testing. This can be done by submitting information on the practice of a State Party to the ICCPR to the Human Rights Committee prior to the state's regular report to the committee.

Non-discrimination and economic rights

States Parties to the Covenant on Economic, Social and Cultural Rights recognise the principle of equal remuneration for work of equal value 'without distinction of any kind' ( ICESCR article 7 (a) (i)). This is a codification of the Universal Declaration on Human Rights statement that 'Everyone, without any discrimination, has the right to equal pay for equal work' (UDHR Article 23).

The International Covenant on Economic, Social and Cultural Rights also outlines rights to equal access to promotion: 'equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence' (ICESCR article 7 ©).

Social security, housing and health

Everyone has 'the right to social security, including social insurance' (ICESCR article 9, UDHR article 22). Everyone has the right to an adequate standard of living, 'including adequate food, clothing and housing, and to the continuous improvement of living conditions' (ICESCR article 11, UDHR article 25) and everyone has the right to enjoy the highest attainable standard of physical and mental health (ICESCR article 12). Conscientious objectors should not, therefore, be denied these rights purely because of their non-performance of military service.

Most appropriate mechanism: Committee on Economic, Social and Cultural Rights, or country-specific rapporteurs
Education

Everyone also has the right to education (ICESCR article 13, UDHR article 26). Primary education 'shall be compulsory and available free to all' (ICESCR article 13(a)), and higher education 'shall be made equally accessible to all' (ICESCR article 13 ©, UDHR article 26).

Most appropriate mechanism: the special rapporteur on education or country-specific rapporteurs
Non-discrimination and political rights

Reinforcing non-discrimination in another way, article 25 of the ICCPR recognises the right to take part in public affairs, to vote and to be elected, and to have access to public services on terms of equality with all other citizens. (Also in article 21 of the UDHR).

Most appropriate mechanism: Human Rights Committee

Right to life

Article 3 of the Universal Declaration on Human Rights recognises the right to life. The 1998 Commission on Human Rights resolution on conscientious objection to military service mentions that 'everyone has the right to life'.

Article 6 of the ICCPR also recognises the right to life and gives certain caveats for the use of the death penalty, including that it can only be used for 'the most serious crimes'.

Most appropriate mechanism: Human Rights Committee or special rapporteur on summary executions

Freedom from torture

Freedom from 'torture and cruel, inhuman or degrading treatment or punishment' (ICCPR, article 7, UDHR, article 5) is a right from which States Parties to the ICCPR are not allowed to derogate even in times of war or during states of emergency. It has also been defined and expanded on in the Convention against Torture.

Most appropriate mechanism: Committee Against Torture or special rapporteur on torture

Freedom of movement

The ICCPR and UDHR assure the right to liberty of movement and freedom to choose residence, and the right to leave any country including your own, except for reasons of national security and public order (ICCPR article 12, UDHR article 13).

Most appropriate mechanism: Human Rights Committee or country-specific rapporteurs

Trials, tribunals and punishment

Article 14 of the ICCPR ensures the right to a fair, public and prompt trial by an independent and impartial tribunal (also in UDHR article 10), the right to be presumed innocent until proven guilty (also in UDHR article 11(1)), the right to appeal against conviction, and the right not to be tried or punished again for an offence for which you have already been finally convicted or acquitted. Article 15 protects a criminal from undergoing a heavier penalty than the one that was in force at the time a crime was committed.

Impartial tribunals

In a manner more specific to conscientious objectors, the 1998 Commission on Human Rights resolution on Conscientious Objection to Military Service welcomes the fact that some States 'accept claims of conscientious objection as valid without inquiry' (such as Finland) and calls upon States to establish independent and impartial decision-making bodies with the task of determining whether a conscientious objection is genuinely held in a specific case.

Is a military tribunal 'impartial'?

Whether a military tribunal which decides the validity of a conscientious objection could be considered 'fair', 'independent and impartial' is doubtful.

Most appropriate mechanism: Human Rights Committee
or special rapporteur on the independence of judges and lawyers
Retrial and repunishment for the same offence

Article 14(7) of the ICCPR states that:

No one shall be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and procedure of each country.

This means that once someone has been tried and punished for his or her conscientious objection to military service, they cannot be retried and repunished for the same reason.

In 1998, the Commission on Human Rights resolution on the right to conscientious objection stated for the first time:

that no one shall be liable or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

1998/77 OP5
Most appropriate mechanism: Human Rights Committee

Freedom from arbitrary detention

Freedom from arbitrary detention or arrest (ICCPR article 9 and UDHR article 9) is a right which applies where a right to a fair trial has been violated, the detention is invalid, and to prisoners of conscience. Many conscientious objectors detained for not performing military service are prisoners of conscience.

This 1998 Commission on Human Rights resolution also stated that conscientious objectors should not be imprisoned for refusing to perform military service:

States should take the necessary measures to refrain from subjecting conscientious objectors to imprisonment... for failure to perform military service.

1998/77 OP5

Right to asylum

In certain circumstances, conscientious objectors have the right to asylum in other countries.

The office of the UN High Commissioner for Refugees (UNHCR) issues a Handbook on Procedures and Criteria for Determining Refugee Status. The UNHCR handbook is agreed to by Member States of the UN.

The handbook considers refugees who are military deserters or conscientious objectors to military service. The handbook makes it clear that anyone deserting or evading the draft because of dislike of military service or fear of combat is not entitled to be a refugee.

Refugee status can, however, be granted for other reasons. In general terms, the handbook states:

There are... cases where the necessity to perform military service may be the sole ground for a claim to refugee status, ie when a person can show that the performance of military service would have required his participation in military action which is contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.

UNHCR Handbook, p40
Grounds for a CO to be granted asylum

The Handbook defines these 'genuine political, religious or moral convictions' as follows:

  • the military action the person is evading has been condemned by the international community as contrary to basic rules of human conduct;
  • the applicant for refugee status has religious convictions against performing military service and has already encountered difficulties due to his or her anti- militarist religious convictions;
  • 'genuine reasons of conscience'.

Asylum can also be granted if:

  • the deserter or draft evader has a well-founded fear of persecution beyond the penalty for desertion.

The UNHCR handbook suggests that a volunteer recruit to an army is less likely to have genuine objections to military service; this is not in line with the most recent Commission on Human Rights resolution, which recognises that recruits can form a conscientious objection during service.

Resolutions of the UN which affirm COs' right to asylum

The 1998 Commission on Human Rights resolution recalls in its preamble that 'article 14 of the Universal Declaration of Human Rights ... recognizes the right of everyone to seek and enjoy in other countries asylum from persecution' and then:

Encourages States, subject to the circumstances of the individual case meeting the other requirements of the refugee definition 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 and there is no, or no adequate, provision for conscientious objection to military service.

CHR 1998/77 OP7

Those COs, therefore, who fear persecution because of their refusal to perform military service in a country where there is no provision for conscientious objection, can legitimately seek asylum in other countries.

Most appropriate mechanism: special rapporteur on religious intolerance.
Asylum for COs refusing to perform crimes against humanity or war crimes

In 1978, a General Assembly resolution recognised the right of all persons to refuse service in a military or police force used to enforce apartheid. This resolution called upon States to grant asylum to those compelled to leave their country because of their conscientious objection to assisting in the enforcement of apartheid through service in military or police forces. (GA 33/165)

COs fleeing their country because of their objection to assisting in these crimes through military service, who do not have the opportunity of alternative service, should therefore be able to seek asylum. They would be fleeing actions 'contrary to the basic rules of human conduct' and 'condemned by the international community' as described by the UNHCR Handbook.

Which crimes?

Apartheid is one of the crimes against humanity listed in the Statute of the new International Criminal Court, and in 1973 it was declared as a crime against humanity in the 'Convention on the Crime of Apartheid'. Other crimes against humanity include genocide (outlawed by treaty in 1948) and torture (outlawed by treaty in 1984). The list in the statute of the International Criminal Court is as follows, although most of these crimes against humanity are such through customary international law, rather than having been deemed as such by treaty. (NB this statute has yet to enter into force but was agreed by states in 1998.)

Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
© Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization...;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible...;

(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Most appropriate mechanism: Human Rights Committee or country-specific rapporteurs

Alternative Service Provision

Recommendations for alternative service provision are included in the 1998 Commission on Human Rights resolution on conscientious objection to military service. The resolution:

Reminds States with a system of compulsory military service, where such provision has not already been made, of its recommendation that they provide for conscientious objectors various forms of alternative service which are compatible with the reasons for conscientious objection, of a non-combatant or civilian character, in the public interest and not of a punitive nature.

1998/77 OP4

Grounds for conscientious objection

Where the right to conscientious objection is recognised, most States will allow religious grounds for the conscientious objection. Certainly the Human Rights Committee's General Comment 22 comments that 'citizens who genuinely hold religious or other beliefs' are frequently exempted from compulsory military service. However, the Commission resolution on this matter makes it clear that there are other equally legitimate grounds for conscientious objection. The resolution recognises

that conscientious objection to military service derives from principles and reasons of conscience, including profound convictions, arising from religious, moral, ethical, humanitarian or similar motives.

1998/77 PP4

The motives are wider than simply religious ones, and States which restrict the recognition of conscientious objection to purely religious motives would not be in conformity with the guidelines as laid down in this resolution.

Most appropriate mechanism: Human Rights Committee

Timing of applications for CO status

The 1998 Commission resolution also states that the Commission is 'aware that persons performing military service may develop conscientious objections' (1998/77 PP 5) and

Affirms the importance of the availability of information about the right to conscientious objection to military service, and the means of acquiring conscientious objector status, to all persons affected by military service.

States should allow those already performing military service to develop a conscientious objection, and should inform all those in the military of their right to conscientiously object and the process by which they can obtain conscientious objector status. This applies to conscripts as well as volunteers. The resolution does not specifically refer to unfair time limits for applying for conscientious objection but by saying that those already performing military service may develop conscientious objections, this should cover cases where individuals did not realise quickly enough of their right not to perform military service, or who changed their mind when faced with the reality of military service.

Most appropriate mechanism: special rapporteur on religious intolerance

Example 1:

In Israel 'those who lack documents proving they have completed military service are often regarded with suspicion. For instance, they may find it difficult to get employment if they explain why they did not complete their military service and they can be refused loans by credit institutions.' Furthermore, Israel conscripts both men and women, but only has legal provisions for female conscripts who want to conscientiously object, not male conscripts. Both are examples of discrimination

War Resisters' International, Refusing to Bear Arms, p158

Example 2:

In 1993, the Human Rights Committee considered an individual case against the Netherlands and decided that the exemption of Jehovah's Witnesses from the requirement to perform both military and alternative service, while not providing any possibility for other conscientious objectors to be exempted from alternative service, amounted to discrimination as prohibited by article 26 of the ICCPR.

Example 3:

Ukraine might have problems in satisfying the right to education. Here, access to state-run education institutions may be rejected without a military document proving completion of military service or legal exemption.

Example 4:

In the USA, for example, non-registrants for the draft are denied federal financial aid for education and for job training, and are barred from federal government employment, and this could be conceived as being a violation of ICCPR article 25 or UDHR article 21.

Example 5:

Draft evaders and deserters in Iraq have often suffered the punishment of branding on the forehead and amputation of
an ear.

In Bolivia, those who do not obey call-up are not imprisoned but are liable 'to face administrative penalties and psychological threats'. These are both
examples of torture and
inhuman or degrading treatment.

Example 6:

When a Moroccan man applies for a passport, his military situation is checked. Those who have not performed military service will have difficulty obtaining a passport. Similarly Eritreans who have not completed their military service cannot travel abroad. As yet, cases where governments limit the travel of COs have not been tested against the human rights treaties. This is a potential avenue for exploration.

Example 7:

In Germany, the consideration of the validity of an objection is undertaken by an independent commission and appeals against decisions go to an administrative court. Switzerland has a more Ministry of Defence-influenced system, where the commission which considers applications for exemption of military service is appointed by the Ministry of Industry and Labour, but the Ministry of Defence has a say in who the members of the commission will be. The USA, on the other hand, recognises the possibility of military personnel developing a conscientious objection to service, but the final decision on an application is taken by the headquarters of the military service concerned. This is not so clearly independent or impartial. Again, this needs to be tested against the human rights treaties.

Example 8:

COs in Cyprus are often sent to prison for refusing to perform military service and once released they are liable to further call-up and further imprisonment if they refuse again. In 1994, this was considered to be a violation of article 14 (7) of the ICCPR by some members of the Human Rights Committee.

How to use the UN: rapporteurs, treaty bodies and other mechanisms

Making a written submission

The information that you send to the UN will be in written form and this document is called your submission. Putting the right information in this submission is essential to your success.

General guidelines for written submissions are outlined below. Some mechanisms have special forms for submitting information, especially about individual cases. Details about these are listed under each individual mechanism.

Length

Your submission is going to be read by the UNstaff member servicing the rapporteur, working group or treaty body to whom you send it, and by the rapporteur or experts themselves. All of them will be unable to read pages and pages of documents, so it is best to keep your submission length to a maximum of four pages, excluding appendices (such as documents forming evidence for your case, or signatures of authority for you to act on behalf of a CO).

Put a short, one page summary at the front of the submission with key points, so that the recipients can at least skim this to get an idea of the nature of the submission.

Content

In the submission you should include the following information:

1. Which mechanism should be considering the submission.

2. Summary of submission.

3. Address to be used in case of further communication including fax numbers and email.

4. Your credentials -- e.g. 'We are an NGOwith x years of experience working with conscientious objectors'.

5. The State against which the complaint is being made.

6. List the relevant articles of treaty law or the relevant international standards that have allegedly been violated. Quote chapter and verse from relevant resolutions or mandates of mechanisms.

7. A detailed description of facts substantiating the allegations. This will include as much relevant and specific information as possible such as:

  • relevant domestic laws and regulations;
  • times, dates, places;
  • name, rank and description of people involved (such as police, judges at a trial or tribunal);
  • names and addresses of witnesses or people with special knowledge of events.

8. Avoid political or ideological observations unless these relate to the reasons for a conscientious objection. Do not be abusive or rude in the submission.

9. If possible, give the desired outcome of the submission, such as:

  • allowing an individual to perform an alternative service;
  • a declaration from a rapporteur that human rights have been violated;
  • a question to be asked of a State when it is in front of a treaty body;
  • a conscientious objector to be released from detention.

10. Attach any supporting documentation such as texts of laws and regulations, newspaper cuttings, photographs, official government documents, etc.

11. Don't assume that those reading your submission will know the country in question well. Explain acronyms or other terminology which may be opaque to those who aren't 'in the know'.

12. Sign and date the submission.

For individual cases or several individual cases:

  • 1. Name of the victim(s) and name of the author. Neither can be anonymous to the mechanism but if you wish you can ask the mechanism to suppress the name of the victim and/or the author.

2. Address, date of birth and nationality of victim(s) and author.

  • 3. Justification for acting on behalf of the victim if applicable -- e.g. you are their legal representative, or you have been asked by the victim, the victim's lawyer, or the victim's family to make a submission.

4. Statement as to whether the matter is being dealt with by another international procedure of investigation or settlement.

5. Describe steps taken to exhaust domestic remedies. If this has not been done, explain why the present means of domestic redress are inadequate. For example, a pattern of acts may show that the law is rarely respected, or long delays in the justice system in the country in question are typical, making remedies effectively useless.

6. Attach any supporting documentation such as affidavits from witnesses, birth certificates, passports, medical reports, letters of authority, etc.

Presentation

You are competing with other NGOs who are also making submissions, and you want your submission to grab attention and be remembered. Consider changing the colour of your cover, consider the readability of the submission, and anything else that would make it distinctive such as the quality of the paper, or the font used in the headings.

Language

The submission should be in one of the six UNlanguages -- English, French, Spanish, Russian, Arabic or Chinese. In reality, it is better to write the submission in English, French or Spanish, or try to provide a translation into one of these languages.

Which process at the UN should I choose for my case?

Quick reference: four types of human rights mechanism

There are four principal types of UN human rights mechanism, and the question of conscientious objection to military service can be considered under any of these. These are:

Treaty bodies

which oversee the implementation of human rights treaties.

Thematic mechanisms of the Commission on Human Rights

which examine thematic human rights issues in all countries in the world.

Country-specific mechanisms of the Commission on Human Rights

where a rapporteur examines all human rights in a single country.

The 1503 procedure

which looks for a 'pattern' of human rights violations in a single country.

Quick reference: which mechanisms deal with which type of information

Mechanisms which deal with individual cases:
Treaty bodies
Commission on Human Rights mechanisms
Mechanisms which can take urgent action:
Treaty bodies
Commission on Human Rights mechanisms
Mechanisms which consider state law or practice:
Treaty bodies
Commission on Human Rights mechanisms
Mechanisms which consider several individual cases at once:

Working out which mechanism is most appropriate for your submission.

This questionnaire has been designed so that you can work through it and establish which mechanism of the UN human rights system is the most appropriate for your submission. It assumes the following:

  • Treaty bodies are the most effective mechanism to deal with human rights violations;
  • thematic mechanisms of the Commission on Human Rights are the second most effective mechanisms to deal with human rights violations;
  • country-specific mechanisms of the Commission on Human Rights are the third most effective mechanisms to deal with human rights violations;
  • giving an oral or written statement to the Commission on Human Rights is the fourth most effective way of accessing the decision-making power of the UN human rights system;
  • the 1503 procedure is the least effective mechanism to deal with human rights violations.

1) Has treaty law been violated? (I.e. the ICCPR, ICESCR or another treaty. See the table on page 16 to find out which treaty laws apply to COs.)

Yes -- go to 2

No -- go to 12

2) Is the government concerned a party to the treaty? (See Reference Materials section at page 68 for parties to the ICCPR. For other treaties, see http://www.un.org)

Yes -- go to 3

No -- go to 12

3) Is it an individual case you wish to raise?

Yes -- go to 4

No -- go to 7

4) Is there an individual complaints procedure for the treaty?

Yes -- go to 5

No -- go to 7

5) Is the government concerned a party to the individual complaints procedure of the treaty? (See Reference Materials section at page 77 for parties to the ICCPROptional Protocol. For other treaties, see the treaties section of the UN website at http://www.un.org.)

Yes -- go to 6

No -- go to 7

6) Submit the case under the individual complaints procedure if the case fulfils the criteria of the treaty body.

7) Does the government concerned have any reservations registered for certain articles of the treaty? (See the treaties section of the UN website at http://www.un.org.)

Yes -- go to 8

No -- go to 9

8) Will these reservations affect the applicability of the treaty to your case or to the country situation you are concerned about?

Yes -- go to 12

No -- go to 9

9) Is the government concerned likely to appear before the relevant treaty body in the next 12 months? (See http://www.unhchr.ch or contact the treaty body secretary to find out.)

Yes -- go to 10

No -- go to 11

10) Send a submission to the treaty body in time for the oral state report to the treaty body. See the section on 'Human Rights Committee' for further details on submitting information to treaty bodies.

11) Can you wait until the next time the government is likely to appear before the treaty body, to submit your information?

Yes -- go to 10

No -- go to 12

12) This case or country situation cannot be considered by a treaty body. It will have to be considered by a mechanism of the Commission on Human Rights. Is there a thematic mechanism of the Commission on Human Rights with special concern for this human rights violation? (See Reference Materials section)

Yes -- go to 13

No -- go to 17

13) Has this thematic mechanism reported on any CO cases in the last three or four years? (Check out the details of the mechanisms).

Yes -- go to 14

No -- go to 16

14) Is this mechanism the special rapporteur on religious intolerance?

Yes -- go to 15

No -- go to 16

15) Send your submission to the Special Rapporteur on religious intolerance. If it is urgent, highlight this in the submission. Feel free to cite standards in the Commission on Human Rights resolution 1998/77 as well as treaty law or the Universal Declaration on Human Rights.

16) Send your submission to this thematic mechanism. In your submission, you can cite standards from Commission on Human Rights resolution 1998/77 but these cannot form your whole case. You will also need to refer to the UDHR, treaty law and probably the Human Rights Committee's general comment 22.

17) Is there a rapporteur or expert of the Commission on Human Rights with special concern for the country where the human rights violations you wish to raise were committed?

Yes -- go to 18

No -- go to 19

18) Send your submission to this rapporteur or expert. In your submission, you can cite standards from Commission on Human Rights resolution 1998/77 but these cannot form your whole case. You will also need to refer to the UDHR, treaty law and probably the Human Rights Committee's general comment 22.

19) Do you have access to the Commission on Human Rights through a UN accredited NGO?

Yes -- go to 20

No -- go to 21

20) Consider making an oral or written statement to the Commission on Human Rights or the Sub-Commission on the situation of concern to you. Unfortunately, for the question of conscientious objection to military service, this is one of the least effective ways of raising your information in a UN mechanism. See 21.

21) Reconsider your case and see if you can frame it in a way that pertains to a particular mechanism of the Commission on Human Rights:

a) Go to question 12 to go through this process again.
or
b) If you are unable to find an appropriate mechanism, go on to question 22.
or
c) If you have already been to question 22, go to 24.

22) Do you have evidence of several cases of violations of human rights?

Yes -- go to 23

No -- go to 24

23) Consider sending your submission into the 1503 procedure. In your submission, you are able to refer to the UDHR and treaty law. This mechanism can take a long time to operate and is conducted behind closed doors, so you may find that it is inappropriate to your needs. See 21.

24) There is no clear avenue for your submission to the Commission on Human Rights or to the treaty bodies.

Treaty Bodies: Human Rights Committee

1) Likely results from use of mechanism

If an expert on the Committee is interested in the points you raise, she or he will ask a question of the State about its practice in relationship to conscientious objection. If the Committee then believes it has advice or assistance to give to the State in relation to its practice, it will outline this in its concluding comment. This is an official UNdocument and will be taken seriously by the State under scrutiny. When the State reappears in front of the Committee, the Committee will be highly likely to ask the State about improvements it has made.

2) To which States does the mechanism apply?

Those States who have ratified or acceded to the ICCPR.

3) Who can submit information?

Anyone -- including NGOs without consultative status, and individuals.

4) When should information be submitted?

Ideally, two months before the government's report is due to be discussed. It is worth telephoning the secretary three weeks after you send off the submission to confirm that it has been received. If these materials are received sufficiently in advance, they are sent by mail to the members so that they can prepare better.

NGOs also have the opportunity of appearing before the working group during the Tuesday afternoon of the working group week. Informal luncheons are arranged during the lunch hour prior to the examination of the report. NGOs do not always take advantage of this opportunity.

5) Any special rules of procedure for submissions?

No.

6) Any special advice for making a submission to this mechanism?

At the end of your submission, include a list of suggested questions about domestic legislation or practice that you would like the Committee to put to the government. Ensure that your executive summary at the beginning is cross-referenced to the main body of the text. Members of the Committee will read this if they read nothing else.

Consider waiting until the government's report is available in order, if possible, to obtain it and read it before making your submission. That way you can counter errors or highlight omissions. You might have to request it from your Ministry of Foreign Affairs or, if that is not possible, from the UN human rights secretariat.

Once the State report is available, if possible, telephone, fax or e-mail the Secretary of the relevant committee to check when the report is likely to be considered. Often the date may slip or the report may be considered earlier than expected.

Be aware of the pattern of periodic reporting. Usually the first report of a State is very comprehensive and subsequent ones will concentrate on the areas the Committee highlighted in its questions at the previous hearing. It might be worth obtaining the earlier reports from the Documentation Unit of the Office of the High Commissioner for Human Rights in Geneva, or try www.unhchr.ch. You might find that the government in question has a poor history on an issue that you wish to raise, or has ignored previous recommendations of the Committee. It is worth reminding the Committee of its earlier comments where relevant. The Committee's criticism will probably be stronger in circumstances like these.

Consider putting out a press release saying that you have made the submission and send copies to anyone you think should see it. This might include other parts of the UN human rights machinery.

Consider sending a copy to the government in question. The delegation may come armed to answer the points you raised and you may consider this to be a disadvantage, but it may also encourage the government to address the issues afresh.

7) What happens to the submission? How long will it take?

A State will start the process by producing a written report for the Human Rights Committee. The UNhas produced a handbook for States on reporting human rights practices. States party to the ICCPR report every few years to the Committee.

States submit their written report some months prior to the Committee session. The Committee will prepare by reading the report and any other material available to it on the country in question, for example from special rapporteurs of the Commission on Human Rights, or NGOs.

Then, when the State comes up in front of the Committee, the Committee members hear an oral update or introduction, and direct questions to the government representatives present. Usually the Committee takes two or three three-hour sessions to consider one State report and ask questions. At the end of the session, the Committee will produce a concluding comment outlining recommendations and comments on the State's practice and legislation.

Sometimes the members of the Human Rights Committee are open to lobbying and you may wish to attend the committee session in New York or Geneva. Advice for doing so is outside the scope of this Handbook but it is worth getting in touch with the International Service for Human Rights if you wish to do this. British Irish Rights Watch has a handbook with some good suggestions too and this is available from their office. (See addresses in Reference Materials section.)

NGO materials (whether with or without consultative status) are received up to the examination of the report.

8) How has the mechanism been used in the recent past for conscientious objection?

Most issues relating to conscientious objection will come up in front of the Human Rights Committee as opposed to any other treaty body.

The UN Human Rights Reporting Handbook does provide guidance to States for raising the issue in their report to the Human Rights Committee. States are asked to discuss the status and position of conscientious objectors and to provide statistical information regarding the number of persons who have applied for conscientious objector status and the number who were actually recognized as such. They are also asked to give the reasons used to justify conscientious objection and the rights and duties of conscientious objectors as compared to those who serve in the regular military service.

Rachel Brett and Jo Constable have found that when a State raises the issue of conscientious objection in its initial report, the Committee will refer to it during meetings, either requesting further clarification on the information provided, or asking direct questions. However, when the State does not raise it, the Committee likewise tends not to mention it. This means that it is even more important for NGOs to provide information to the Committee in these instances.

Questions surrounding conscientious objection have been raised in relation to:

  • whether the right is recognised at all (Jordan, 1994; Cyprus, 1994; Tunisia 1994; Libyan Arab Jamahiriya, 1994);
  • whether individuals have the right to claim conscientious objector status after entering the military (France, 1997; Spain 1996);
  • the process for obtaining conscientious objector status (Argentina, 1994; Brazil, 1996);
  • whether the actual status of conscientious objectors is not being respected (Paraguay, 1995);
  • whether alternative service of twice the length is unfair (France, 1997) and comparative lengths of alternative and military service in general (Cyprus, 1994; Estonia, 1995; Russian Federation, 1995; Slovakia 1997);
  • repeated call-up of conscientious objectors, especially in relation to potential violations of article 14(7) of the ICCPR (Cyprus, 1994);
  • discrimination against those objecting on non-religious grounds (Slovakia, 1997; Ukraine, 1995);
  • registration for conscientious objector status and the grounds on which an individual can claim to be a conscientious objector (Russian Federation, 1995; Slovakia, 1997).

Brett and Constable conclude that there have, however, been substantive omissions by the Committee with regard to the issue of discrimination against conscientious objectors for their failure to perform military service, which was included in the General Comment but has not yet been addressed by the Committee.

Mandate established:
1966

Mandate next up for renewal:
n/a

UN Staff person:
Mr Alfred de Zayas
adezayas.hchr@unog.ch Tel:+41229179293 Fax:+41229179003

Summary of mechanism:
Made up of independent experts, the Human Rights Committee oversees the implementation of the International Covenant on Civil and Political Rights (ICCPR. States who have ratified the Covenant are under an obligation to report every few years to the Committee. After submitting a written report, States are questioned orally during a Committee session on its human rights practice, with the aim of achieving a constructive dialogue. At the end of the session the Committee produces a concluding comment which outlines recommendations, and comments on the State's practice and legislation.

Treaty Bodies: Human Rights Committee Optional Protocol

Although the Human Rights Committee does not have an urgent action procedure, it does occasionally exercise the ability to intervene urgently in cases which have been submitted to it under the optional protocol. In such a situation, regardless of its final view on the complaint, the Committee can inform the government concerned that interim measures are required to avoid damage to the victim.

1) Likely results from use of mechanism

A decision from the Human Rights Committee on your case either declaring a violation of the Covenant by the State concerned, or declaring the case inadmissible. If a violation of the Covenant is found, the Committee may recommend that the State concerned make amends, or rectify the situation. This might include recommending compensation to the conscientious objector, or releasing him or her from prison.

2) To which States does the mechanism apply?

To States who have ratified the first optional protocol to the ICCPR, thereby recognising the competence of the Human Rights Committee to receive and give opinions on individual complaints against themselves. For a list of present States Parties to the protocol, see appendix..

3) Who can submit information?

The complainant must be under the jurisdiction of a state party to the optional protocol, though anyone can submit information on their behalf.

4) When should a communication be submitted?

There is no time limit after the alleged event for receiving infmriaotn but it is best to submit the communication as soon as possible.

5) Are there any special rules of procedure?

Yes. The Human Rights Committee has adopted its own rules of procedure as regards to the admissibility of a communication. These, with brief explanations, are as follows:

(a) That the communication is not anonymous and that it emanates from an individual or individuals subject to the jurisdiction of a State Party to the Protocol;

i.e. the complainant must be under the jurisdiction of a State which has voluntarily agreed to the authority of the Human Rights Committee to receive individual complaints. This means that they must have been present within the territory of the State concerned at the time of the alleged violation, that the act complained of was committed by an agent of the State (such as a government official), or that the conscientious objector has a relevant relationship with the State concerned (for example if the complaint is about a right to a nationality).

(b) That the individual claims, in a manner sufficiently substantiated, to be a victim of a violation by that State Party of one or more of the rights set forth in the Covenant. Normally, the communication should be submitted by the individual himself or by his representative; a communication submitted on behalf of an alleged victim may, however, be accepted when it appears that he is unable to submit the communication himself;

i.e. There must be sufficient information to establish that the complainant is indeed a victim of a violation of human rights and in particular of a right in the Covenant, and communications must be from the victim or his/her representative.

© That the communication is not an abuse of the right to submit a communication under the Protocol;

For example, the complainant using the mechanism merely to attack the government, or to claim to act in ways which violate the rights of others, such as being racially abusive.

(d) That the communication is not incompatible with the provisions of the Covenant;

For example, the right to own property would fall outside of the Covenant's scope.

(e) That the same matter is not being examined under another procedure of international investigation or settlement;

i.e. The issue must not presently be under consideration by, for example, the European Court of Human Rights, or another treaty body.

(f) That the individual has exhausted all available domestic remedies.

i.e. either the individual has already taken the complaint through the courts, or the individual can show that this is not possible or that obtaining a remedy would be 'unreasonably prolonged'.

6) Any special advice for a submission to this mechanism?

The Human Rights Committee has produced a model communication, which does not have to be used but which serves as a useful guide. This is in the Factsheet No. 7, issued by the Office of the High Commissioner for Human Rights, and available over the world-wide web or from the address at the back of this handbook.

7) What happens to the submission? How long does it take?

The whole process is done in writing; there is no oral hearing or fact-finding mission for this process.

The communication is screened by a member of the UN human rights secretariat who may contact the author for further information, and is then forwarded to a rapporteur of the Human Rights Committee who considers new applications.

The rapporteur considers whether there is sufficient information contained in the communication for the Committee to rule on admissibility, and if there is sufficient information, s/he submits the communication to the relevant state with a request for observations. The state has two months to respond.

One week before a Committee session, a five-member working group of the Committee meets to decide whether cases are admissible. If all five agree on the admissibility of the case, that is acceptable. The whole Committee has to agree to a case being inadmissible.

Once the case is admitted, the State has a further six months to submit written statements to clarify the matter with the Committee. These are forwarded to the author, who has six weeks to respond.

The Committee adopts 'views' which, although they are not legally binding and have no sanctions for non-compliance, are very morally persuasive. Consensus is the preferred medium for the Committee. The Committee will often go beyond stating whether or not there has been a violation to offer an opinion on the State's obligation in the matter. A rapporteur of the Committee follows up the views by communicating directly with governments, and states must include any measures taken in the light of the views in their subsequent reports to the Committee. The annual report of the Committee lists States who have failed to respond to requests, and those who have cooperated.

Between 1991 and 1997, follow-up information had been received in respect of 125 views. The Committee considered that 30 per cent of the replies received were satisfactory.

8) How has the mechanism been used in the recent past for conscientious objection?

There are some figures for the use of the optional protocol in general. The Committee began work under the Optional Protocol in 1977. Since that time until 1997, 765 communications concerning 54 States Parties had been registered for consideration. Of these, 263 had been concluded, including 199 in which violations of the Covenant were found, 242 had been declared inadmissible, 115 had been discontinued or withdrawn, 45 had not yet been concluded, and 100 were at the pre-admissibility stage.

There are a couple of examples where the individual communications procedure has been used for conscientious objector cases.

In 1992 A.R.U., from The Netherlands, submitted a complaint describing how he resisted the draft for military service because of his belief that he would become an accessory to the commission of crimes against peace and the crime of genocide, as he would be forced to participate in the preparation for the use of nuclear weapons. This complaint was held by the Committee to be inadmissible. The Committee believed that the author had not exhausted domestic remedies available as he had not applied for alternative service under the Conscientious Objection Act in The Netherlands. They also decided that he could not claim to be a victim of violations of ICCPR articles 6 and 7 (inherent right to life and freedom from torture) merely by reference to the requirement to do military service.

A decision in 1993 on another communication from 1990 (Brinkhof v The Netherlands) is summarised by Rachel Brett and Jo Constable:

Although rejecting the claimant's case, on the basis that he had not proved his conscientious objection to performing alternative service, the Committee stated that the exemption of Jehovah's Witnesses from the requirement to perform both military and alternative service while not providing any possibility for other conscientious objectors to be exempted from alternative service amounted to discrimination in violation of article 26 of the Covenant.

Mandate established:
1966

Mandate next up for renewal:
n/a

UN Staff person and Email: Mr Alfred de Zayas
adezayas.hchr@unog.ch Tel:+41229179293 Fax:+41229179003

Summary of mechanism:
An individual communications procedure of the Human Rights Committee. The committee decides whether cases are violations of the International Covenant on Civil and Political Rights (ICCPR). The procedure is outlined in the first optional protocol of the ICCPR.

Other Treaty Bodies

Other treaty bodies are rarely used for CO cases

Apart from the Human Rights Committee, the other treaty bodies, which include the Committee on the Elimination of Discrimination (CERD) and the Committee Against Torture (CAT), are not likely to be the first port of call for a conscientious objector. The more obvious mechanisms for COs are the Human Rights Committee and the special mechanisms of the Commission on Human Rights, such as thematic and country-specific rapporteurs.

Like the Human Rights Committee, each treaty body oversees the implementation of a convention. The outcomes from these treaty bodies are similar to those of the Human Rights Committee. Both CERD and CAThave an optional individual communications procedure, enabling the committees to consider individual cases as well as State practice and legislation. However, these procedures are very underused.

When you might use other treaty bodies

If you find that the State who is failing to recognise rights associated with conscientious objection is not a party to the ICCPR but is a party to the CERD, ICESCR or CAT, you may wish to pursue your case or country situation under these conventions. All treaty bodies receive periodic reports from states party to the treaty. Rules of procedure are similar to those for the Human Rights Committee. You should

a) read the relevant conventions in full to see if the State Party is failing to respect these rights. These are available on the web at http://www.unhchr.ch.

b) contact the secretary to the Committee. Their names and contact details are as follows:

All committees share a fax number: +41 22 917 9022.

Committee on Elimination of Racial Discrimination
Mr Robert Husbands
rhusbands.hchr@unog.ch
Tel: +41 22 917 9290

Committee on Economic, Social and Cultural Rights
Mr Alexandre Tikhonov
atikhonov.hchr@unog.ch
Tel: +41 22 917 9321

Committee against Torture
Mr Alessio Bruni
abruni.hchr@unog.ch
Tel: +41 22 917 9316

Human Rights Commission:
Special Rapporteur on Religious Intolerance

Urgent allegations are forwarded to governments accompanied by a request for confirmation that a potential human rights abuse is not going to be committed.

1) Likely results from use of mechanism

a) Individual cases

For individual cases, the rapporteur forwards allegations to governments, and sends governmental responses to the original source for further information. He will not make a judgement on whether a particular allegation has been proven.

b) State law and practice

The rapporteur will usually ask governments to comment on information he has received about legislation or official practice. He may highlight a government in his report, an individual case, or request a country visit. He will make recommendations to a government about its practice in his reports.

2) To which States does the mechanism apply?

All States, regardless of whether they have ratified a human rights treaty.

3) Who can submit information?

Anyone, even without consultative status to ECOSOC, including religious groups and communities. The Special Rapporteur receives information from States, non-governmental organizations and individuals during in-situ visits and for allegations.

4) When should information be submitted?

Information can be provided at any time but the Special Rapporteur will include in particular a summary of his communications in his next report to the Commission on Human Rights, for those sent before the beginning of November (because of the deadline for submission of his reports to the editors in time for the Commission on Human Rights in March and April).

5) Any special rules of procedure for submissions?

No.

6) Any special advice for making a submission to this mechanism?

No.

7) What happens to the submission?How long will it take?

The special rapporteur receives information on abuses of the right to conscientious objection and transmits it to the government, asking for a response, and appealing to it to safeguard the person's right to religious freedom. Action taken, replies and recommendations are listed in the annual and public report of the rapporteur to the Commission on Human Rights. Priority is given to complaints arising in the current year, and the process of taking the complaints up with the government is continuous.

8) How has the mechanism been used in the recent past for conscientious objection?

The special rapporteur for religious intolerance has the mandate most closely related to conscientious objection to military service and, apart from the special rapporteur on torture, is the only thematic mechanism to have mentioned conscientious objectors in reports in the last couple of years.

There are several examples of this in his reports. In 1996, the rapporteur reported on a visit to Greece, where he examined the legislation in Greece for conscientious objection and rehearsed the debate about the nature of citizenship and whether this allows for conscientious objection or alternative service. His report to the Commission in 1997 raised the issue in relation to several countries including the Federal Republic of Yugoslavia, Greece, Cyprus, the Russian Federation, Croatia and Singapore.

In 1997, the Rapporteur reported to the General Assembly on the lack of alternative service provision in Albania, Belarus and Mongolia, the legal time limit for declarations of refusal to undertake military service in Austria, Portugal, the Czech Republic and Slovakia, and the punitive duration of alternative service in Austria, Portugal, Macedonia and Slovakia. The rapporteur reminded States of Commission on Human Rights resolution 1989/59, 'reaffirmed several times', which recognised the right to conscientious objection for the first time, and 1984/93. He referred to the latter because it called 'for minimum guarantees to ensure that conscientious objection status can be applied for at any time'.

The rapporteur's 1998 report refers to problems over conscientious objection in Albania, Belarus, Mongolia, Austria, the Czech Republic, Portugal and Slovakia. In 1999, the rapporteur mentions COs in the Russian Federation, Romania and Turkmenistan.

Mandate established:
1986

Mandate next up for renewal:
2001

Name of current post holder:
Mr Abdelfattah Amor

UN Staff person:
Mr Patrice Gillibert
pgillibert.hchr@unog.ch Tel:+41229179332 Fax:+41229179018

Summary of mechanism:
The mandate is based on the Declaration on the Elimination of all Forms of Intolerance and of Discrimination Based on Religion or Belief, and article 18 of the ICCPR. It provides for 'examination of incidents and governmental action in all parts of the world which are inconsistent with the provisions of the Declaration, and to recommend remedial measures, as appropriate'. This includes violations of freedom of thought, conscience, religion or belief.

Under this provision, the rapporteur considers the subject of the right to conscientious objection. The rapporteur receives information on this subject and gives an annual report to the Commission on Human Rights highlighting state practice, trends and individual cases. The rapporteur also makes country visits to countries of special interest to his mandate, and reports on these too.

Human Rights Commission:
Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions

1) Likely results from use of mechanism

As for the special rapporteur on religious intolerance.

2) To which states does the mechanism apply?

All -- even those who have not ratified a human rights treaty.

3) Who can submit information?

Only NGOs in consultative status with ECOSOC can submit information

4) When should information be submitted?

As for the special rapporteur on religious intolerance.

5) Any special rules of procedure for submissions?

No.

6) Any special advice for making a submission to this mechanism?

No.

7) What happens to the submission?

The special rapporteur receives information from NGOs and individuals and transmits it to the government concerned, asking for a response. If the case is urgent, the rapporteur appeals to the government to safeguard the person's right to life. Action taken, replies and recommendations are listed in the annual and public report of the rapporteur to the Commission on Human Rights. Priority is given to complaints arising in the current year, and the process of taking the complaints up with the government is continuous.

8) How has the mechanism been used in the recent past for conscientious objection?

The rapporteur has not reported on CO cases in recent years.

Mandate established:
1982

Mandate next up for renewal:
2001

Name of current post holder:
Ms Asma Jahangir

UN Staff person:
Mr Henrik Stenman
hstenman.hchr@unog.ch Tel:+41229179128 Fax:+41229179003

Summary of mechanism:
To examine, report upon, take the necessary steps to prevent, and make recommendations for the prevention of violations of the right to life arising from the death penalty, deaths in custody, deaths due to use of force by law enforcement officials, death threats and fear of execution carried out without the sanction of the courts, violations of the right to life during armed conflicts, expulsions to a country where a person's life is in danger, genocide, failure to investigate violations of the right to life, and failure to compensate victims of such violations. The rapporteur receives information on this subject and gives an annual report to the Commission on Human Rights highlighting state practice, trends and individual cases. The rapporteur also makes country visits to countries of special interest to his mandate, and reports on these too.

Human Rights Commission:
Special Rapporteur on Torture, Cruel, Inhuman or Degrading Treatment or Punishment.

The special rapporteur on torture will act urgently in cases where there is evidence that someone has been arrested and there is a fear that s/he will be subjected to torture.

1) Likely results from use of the mechanism

As for the special rapporteur on religious intolerance.

2) To which States does the mechanism apply?

The special rapporteur on torture has universal scope, and so states to which the rapporteur addresses his appeals do not have to be party to any specific human rights conventions.

3) Who can submit information?

Anyone.

4) When should information be submitted?

As for the special rapporteur on religious intolerance.

5) Any special rules of procedure for submissions?

None for information on State practice or individual cases. There are criteria for the rapporteur to intervene in urgent actions, however.

Evidence proving that someone is in danger of being tortured may take the form of eyewitness accounts from relatives, lawyers, doctors, etc, who have seen the detainee's physical condition, or may spring from the fact that the person is being kept incommunicado, which is recognised as being a situation conducive to torture.

The special rapporteur will have regard to the following factors:

a) the previous reliability of the source of the information;

b) the internal consistency of the information;

c) the consistency of the information with information on other cases from the country in question;

d) the existence of authoritative reports of torture practices from national sources, such as official commissions of inquiry;

e) the findings of other international bodies, such as UN country rapporteurs and representatives, the Human Rights Committee, the Committee against Torture etc;

f) the existence of national legislation, such as that permitting prolonged incommunicado detention, that can have the effect of facilitating torture; and

g) the threat to the potential victim of extradition or deportation, directly or indirectly, to a state or territory where one or more of the above elements is present.

The rapporteur asks the government to give assurances that the detainee's physical and mental integrity will be guaranteed.

6) Any special advice for making a submission to this mechanism?

No.

7) What happens to the submission?How long will it take?

The special rapporteur receives information from NGOs and individuals and transmits it to the government concerned, asking for a response. If the case is urgent, the rapporteur appeals to the government to safeguard the person's physical and mental integrity. Action taken, replies and recommendations are listed in the annual and public report of the rapporteur to the Commission on Human Rights. Priority is given to complaints arising in the current year, and the process of taking the complaints up with the government is continuous.

8) How has the mechanism been used in the recent past for conscientious objection?

The Special Rapporteur on Torture was the only rapporteur in 1997 and 1998 who acted on cases relating to conscientious objectors being tortured.

In 1998, the Rapporteur reported the case of Uvanchaa Dozur-ool Mongushevich, a novice monk from St. Petersburg, who was drafted into the army in spite of his conscientious objection and severely beaten by fellow soliders. In 1997, he described a case in Paraguay where a member of the Conscientious Objection Movement who was travelling to a workshop on conscientious objection was tied up at knife point by a division of the army and made to give information on the conscientious objection movement in the country. He also reported three other cases of conscientious objectors in Paraguay who were arrested, beaten and subjected to harassment.

In 1999, the rapporteur visited Turkey and reported the case of Cemir Doan who was detained because he had not done his military service.

Mandate established:
1985

Mandate next up for renewal:
2001

Name of current post holder:
Sir Nigel Rodley

UN Staff person:
Mr Alan Parra
aparra.hchr@unog.ch Tel:+41229179222 Fax:+41229179006

Summary of mechanism:
To examine questions relevant to torture, and cruel, inhuman or degrading treatment or punishment, to seek and receive credible and reliable information on such questions, to make urgent appeals for clarification to governments on behalf of individuals who may be being or be at risk of being tortured, to make recommendations to governments to alert them to acts of torture and advise them on preventing such acts, and to make investigative visits to countries.

The rapporteur receives information on this subject and gives an annual report to the Commission on Human Rights highlighting state practice, trends and individual cases. The rapporteur also makes country visits to countries of special interest to his mandate, and reports on these too.

Human Rights Commission:
Special Rapporteur on the Independence of Judges and Lawyers

1) Likely results from use of mechanism

As for the special rapporteur on religious intolerance.

2) To which States does the mechanism apply?

All, regardless of any ratification of human rights treaties.

3) Who can submit information?

Anyone.

4) When should information be submitted?

The process of taking up cases with governments is continuous. However, for inclusion in that year's report to the Commission, communications and submissions should be with the rapporteur by October of any year.

5) Any special rules of procedure for submissions?

No.

6) Any special advice for making a submission to this mechanism?

No.

7) What happens to the submission?How long will it take?

The rapporteur communicates complaints to the relevant government and asks for a response. Complaints sent and communications received are reported in the annual public report of the rapporteur to the Commission on Human Rights.

8) How has the mechanism been used in the recent past for conscientious objection?

This rapporteur has not reported on any COcases in recent years. However, this mechanism would be an obvious choice for cases of military tribunals, testing their impartiality.

Mandate established:
1994

Mandate next up for renewal:
2000

Name of current post holder:
Mr Dato Param Cumaraswamy

UN Staff person:
Mr Alan Parra
aparra.hchr@unog.ch Tel:+41229179222 Fax:+41229179006

Summary of mechanism:
The rapporteur investigates and reports on attacks on the independence of judges, lawyers and officials of courts. He recommends proposals for protecting and enhancing the independence of judges, lawyers and court officials, and studies topical questions relating to his mandate. He reports regularly to the Commission on Human Rights.

Human Rights Commission:
Special Rapporteur on the Freedom of Opinion and Expression

1) Likely results from use of mechanism.

As for the special rapporteur on religious intolerance.

2) To which States does the mechanism apply?

All, regardless of ratification of any human rights treaties.

3) Who can submit information?

Anyone.

4) When should information be submitted?

The process of taking up complaints with governments is continuous. However, for inclusion in that year's report, complaints should be received by October of the same year.

5) Any special rules of procedure for submission?

The rapporteur stated in his 1999 report the following:

Guidelines for the submission of information to the Special Rapporteur

In order for the Special Rapporteur to be able to take action regarding a communication on a case or incident, the following information, as a minimum, must be received.

1. Allegation regarding a person or persons

As detailed a description of the alleged violation as possible, including date, location and circumstances of the event;

Name, age, gender, ethnic background (if relevant), profession;

Views, affiliations, past or present participation in political, social, ethnic or labour group/activity;

Information on other specific activities relating to the alleged violation.2. Allegation regarding a medium of communication

As detailed a description of the alleged infringement on the right as possible, including date, location and circumstances of the event;

The nature of the medium affected (e.g. newspapers, independent radio), including circulation and frequency of publication or broadcasting, public performances, etc;

Political orientation of the medium (if relevant).

3. Information regarding the alleged perpetrators

Name, State affiliation (e.g. military, police) and reasons why they are considered responsible;

For non-State actors, description of how they relate to the State (e.g. cooperation with or support by State security forces);

If applicable, State encouragement or tolerance of activities of non-State actors, whether groups or individuals, including threats or use of violence and harassment against individuals exercising their right to freedom of opinion and expression, including the right to seek, receive and impart information.

4. Information related to State actions

If the incident involves restrictions on a medium (e.g. censorship, closure of a news organ, banning of a book, etc.), the identity of the authority involved (individual and/or ministry and/or department), the legal statute invoked, and steps taken to seek domestic remedy;

If the incident involves arrest of an individual or individuals, the identity of the authority involved (individual and/or ministry and/or department), the legal statute invoked, location of detention if known, information on provision of access to legal counsel and family members, steps taken to seek domestic remedy or clarification of person's situation and status;

If applicable, information on whether or not an investigation has taken place and, if so, by what ministry or department of the Government and the status of the investigation at the time of submission of the allegation, including whether or not the investigation has resulted in indictments.

5. Information on the source of the communications

Name and full address;

Telephone and fax numbers and e-mail address (if possible);

Name, address, phone/fax numbers and e-mail address (if applicable) of person or organization submitting the allegation.

Note: In addition to the information requested above, the Special Rapporteur welcomes any additional comments or background notes that are considered relevant to the case or incident.

6) Any special advice for making a submission to this mechanism?

The special rapporteur is particularly interested in hearing both follow-up to submissions previously sent, and about the root causes of violations. In his 1999 report to the Commission he stated the following:

Follow-up

The Special Rapporteur attaches great importance to being kept informed of the current status of cases and thus very much welcomes updates of previously reported cases and information. This includes both negative and positive developments, including the release of persons detained for exercising their rights to freedom of opinion and expression and to seek, receive and impart information, or the adoption of new laws or policies or changes to existing ones that have a positive impact on the realization of the rights to freedom of opinion and expression and information.

Root causes

In order to carry out his work regarding the root causes of violations, which is of particular importance to the Special Rapporteur, he is very much interested in receiving information on and/or texts of draft laws relating to or affecting the rights to freedom of opinion and expression and to seek, receive and impart information. The Special Rapporteur is also interested in laws or government policies relating to electronic media, including the Internet, as well as the impact of the availability of new information technologies on the right to freedom of opinion and expression.

7) What happens to the submission?How long will it take?

The rapporteur communicates complaints to the relevant government and asks for a response. Complaints sent and communications received are reported in the annual public report of the rapporteur to the Commission on Human Rights.

8) How has this mechanism been used in the recent past for conscientious objection?

This mechanism has not been used recently for COcases. This does not mean that it should not be used, and the mandate has potential for use by COs. For instance, if an individual has been prosecuted for distributing leaflets about the right to conscientious objection in a country where the right is not recognised, and that individual was not a conscript, then this might fall under the remit of this rapporteur. The mandate needs to be tested in this manner.

Mandate established:
1993

Mandate next up for renewal:
2002

Name of current post holder:
Mr Abid Hussain

UN Staff person:
Ms Martine Anstett
manstett.hchr@unog.ch Tel:+41229179110 Fax:+41229179003

Summary of mechanism:
The rapporteur monitors discrimination, threats, violence, harassment, persecution and intimidation of people exercising or promoting the right to freedom of expression. He communicates complaints to governments and seeks assurances that the right to freedom of expression will be respected in individual cases. He reports annually on his activities to the Commission on Human Rights.

Human Rights Commission:
Working Group on Arbitrary Detention

Urgent actions: The Working Group on Arbitrary Detention will only act urgently where there is reason to believe that someone is being detained arbitrarily and that as a result their health or their life may be in danger, or where there is some other compelling reason for urgent action.

The action takes the form of transmitting the communication (sending a copy of the complaint) to the relevant Minister for Foreign Affairs, accompanied by an urgent appeal to the government to safeguard the person's right to life and physical integrity.

1) Likely results from use of mechanism

The results are very similar to those for the special rapporteur for religious intolerance. In addition, the Working Group is able to investigate cases and give opinions on them. These opinions are reported annually to the Commission on Human Rights.

2) To which States does the mechanism apply?

All, regardless of ratification of human rights treaties.

3) Who can submit information?

The working group can only receive information from individuals, their families and representatives. This said, they reported in 1995 that 74% of cases were brought to them by international NGOs, 23% from national NGOs and only 3% from families.

4) When should information be submitted?

The process of taking up cases with governments is continuous.

5) Any special rules of procedure for submissions?

No.

6) Any special advice for making a submission to this mechanism?

This will be a natural recipient of many CO cases. The Working Group does have a questionnaire in which it would like communications to be formatted and this is available from the secretary to the group. Minimum information should include

  • date of arrest
  • place of detention
  • formal charges, if any
  • access to counsel/outside organization/family, etc
  • date of presentation to a judge, if applicable
  • date and information about trial, if applicable.

7) What happens to the submission?How long will it take?

Complaints are sent to governments who have up to 90 days to make their reply. Once the working group has received the reply, they can recommend that the government remedies the situation, and their recommendations are reported to the Commission on Human Rights in their annual public report.

Depending on the complexity of the case, the time it takes the Working Group to come to a final decision varies between 6 months and 18 months.

8) How has the mechanism been used in the recent past for conscientious objection?

Although the working group on arbitrary detention would be a natural mechanism to consider CO cases, it does not seem to have been used for this purpose yet.

Mandate established:
1991

Mandate next up for renewal:
2000

UN Staff person:
Mr Markus Schmidt
mschmidt.hchr@unog.ch Tel:+41229179258 Fax:+41229179006

Summary of mechanism:
Examines cases of arbitrary detention, which encompasses cases where there is no legal basis for the detention, prisoners of conscience, and cases where the right to a fair trial has been so badly violated, it makes the subsequent detention invalid. Examples of the kind of issues the Working Group examines include:

  • detention arising from a fundamental breach of human rights such as freedom of expression or freedom of thought, conscience and religion;
  • excessive time being spent on remand before being brought to trial;
  • where a person is detained after they should have been released;
  • house arrest.

The Working Group meets three times a year and reports on its activities to the Commission on Human Rights. It also issues 'Opinions' on certain individual cases submitted to it.

Human Rights Commission:
Working Group on Enforced or Involuntary Disappearances

For urgent action: The Working Group communicates the complaint to the relevant government and appeals to it to seek information as to the location and well-being of the missing person.

1) Likely results from use of mechanism

As for the special rapporteur on religious intolerance.

2) To which States does the mechanism apply?

All, regardless of ratification of any human rights treaties.

3) Who can submit information?

Governments, intergovernmental organisations, humanitarian organisations and 'other reliable sources' can submit information. Usually relatives of the victim and NGOs acting on their behalf submit information.

4) When should information be submitted?

Complaints are taken up with governments continuously.

5) Any special rules of procedure for submissions?

The Working Group will allow submissions if it includes the following information:

a) Full name of the missing person;

b) Date of disappearance, i.e. day, month and year of arrest or abduction or day, month and year when the missing person was last seen;

c) Place of arrest or abduction or where the missing person was last seen;

d) Parties presumed to have carried out the arrest or abduction or to hold the missing person in unacknowledged detention; and

e) Steps taken to determine the fate or whereabouts of the disappeared person, or at least an indication that efforts to use domestic remedies were frustrated or otherwise inconclusive.

6) Any special advice for making a submission to this mechanism?

There is a questionnaire available from the staff person administering this committee which you can use to structure your submission. However, submissions are accepted when not in the form of the questionnaire, so it is dispensable.

7) What happens to the submission?

The working group meets three times a year, at least one of these times being outside Geneva. Submissions can be made to it at any time. It handles submissions by transmitting the complaint to the government and seeking information as to the location and well-being of the missing persons.

8) How has the mechanism been used in the recent past for conscientious objection?

The working group does not appear to have considered any cases relating to conscientious objection in recent years.

Mandate established:
1980

Mandate next up for renewal:
2001

UN Staff person:
Mr Miguel De la Lama
Tel: +41 22 917 9289Fax: +41 22 917 9006

Summary of mechanism:
To receive and examine reports of people who have disappeared from relatives or NGOs acting on their behalf, to transmit those reports to governments and ask them to investigate and report back to the Working Group, to monitor States' compliance with the UN Declaration on the Protection of All Persons from Enforced Disappearances, and to visit countries in order to investigate and to make recommendations for the prevention of and remedies for disappearances.

Human Rights Commission:
Country-Specific Mechanisms

1) Likely results from use of mechanism

Rapporteurs will highlight certain information in their reports to the Commission, and will take up cases and situations with the government of the country concerned, with a view to a constructive dialogue on the human rights situation in that country. Some rapporteurs are also invited to make reports to the General Assembly if the country is of pressing concern to the UN.

2) To which States does the mechanism apply?

Only to the State or territories which are named in the mandate. The country rapporteur or expert will give due consideration to that country's international human rights obligations under treaty law, but will also refer to other customary law when making recommendations to that state.

3) Who can submit information?

Anyone.

4) When should information be submitted?

All country-specific mechanisms work throughout the year on their countries. It would be worth getting in touch with the secretary to the rapporteur or expert to find out if any visits are being made as this might mean your submission takes on more significance in timing, or you might be able to meet with the rapporteur when they visit. The rapporteurs and experts will write their reports to the Commission on Human Rights around November or December of each year.

5) Any special rules of procedure for submissions?

No.

6) Any special advice for making a submission to this mechanism?

You will see from point 8 that the coverage of conscientious objection by country-specific mechanisms is not as good as it could be. It is also true that the rapporteurs have a much wider remit over a variety of human rights than the thematic mandates. It is therefore advisable to be thorough in referring to international standards and treaty law when contacting these rapporteurs. Refer to General Comment 22 of the Human Rights Committee as well as Commission on Human Rights resolution 1998/77, alongside treaty law.

7) What happens to the submission?How long will it take?

The rapporteurs and experts will take up cases and situations with the government concerned and seek assurances that human rights will not be abused. This is done continuously.

8) How has the mechanism been used in the recent past for conscientious objection?

Thus far, in general, it has only been forced conscription and the consequences of desertion or avoiding military service which make it into the reports. Examples can be seen in the reports on Sudan, Iraq, Myanmar, the territory of the Former Yugoslavia and Afghanistan.

Iraq

The rapporteur for Iraq goes into detail in his General Assembly reports about the punishments of ear amputation and forehead branding for desertion, asking in 1995 for the Government of Iraq to abrogate immediately 'any and all decrees that prescribe cruel and unusual punishment or treatment'. The rapporteur reports in 1996 that Presidential Decree 81 stopped this practice.

Myanmar

For Myanmar, the rapporteur gives information about executions of civilians who resist becoming porters for the army or providing services for the army, and porters trying to escape who reportedly had hot water poured over them. In one of his recent Commission on Human Rights reports, the rapporteur looks at torture of those unable to carry the required load when forced to porter for the army.

Afghanistan

Forced conscription is mentioned in reports on Afghanistan where the rapporteur 'was... informed about the conscription of men aged 19 to 39 with no exemptions, which partly accounted for an alleged desertion rate of 30 percent'. In 1998, in a report to the Commission on Human Rights, forced conscription is mentioned again because of a 'conspicuous absence of young men' in certain villages and that some villages had established observation posts to watch out for conscription teams.

Sudan

The rapporteur on the Sudan has reported to the General Assembly the practice of rounding up children from major towns and sending them to special camps where in some cases they are trained by the military.

Former Yugoslavia

In the 1994 General Assembly/Security Council report on the territory of the Former Yugoslavia, there is a section devoted to the draft, military service and conscientious objection, mostly in Croatia. The rapporteur reports forced recruitment, detention as punishment for those who refused to be mobilized and charged under Croatia's criminal code, and the fact that there are not long enough periods of application for conscientious objection. However, more recent reports on this region to the Commission on Human Rights have not mentioned the subject of conscientious objection.

Country-specific mechanisms which have not mentioned conscientious objections

Alongside those who do mention forced conscription, it is worth considering those country rapporteurs who have thus far refrained from mentioning it. In 1997 and 1998, for example, the Commission on Human Rights heard reports from 23 rapporteurs and independent experts on country situations. It is not that there have been no cases of conscientious objectors who have been badly treated in these countries. The War Resisters' International report, Refusing to Bear Arms, reports that there have been problems for conscientious objectors in 17 of the States covered by rapporteurs of the Commission in 1997 and 1998. The country-specific rapporteurs either do not know that COs face difficulties in these countries, or they are ignoring this fact. The rapporteurs and experts will not be sensitised to the CO issue unless NGOs who work with COs and COs themselves send more information about the situations in those countries.

General comments on coverage of conscientious objection by country-specific mechanisms

It seems that it is only in the worst cases of forced conscription that the issue is brought to the General Assembly or the Commission on Human Rights. Rapporteurs tend not to delve into the shades of grey around the right to conscientiously object to military service such as whether an impartial tribunal has established the right to conscientious objection, or whether there is a provision for alternative service -- let alone whether that alternative service is non-punitive. Neither do the rapporteurs examine discrimination against those who have not completed their military service. Again, country specific mechanisms are perhaps not receiving information from NGOs to this effect.

Afghanistan (Mr Kamal Hossain)
Bosnia and Herzegovina, Republic of Croatia and the Federal Republic of Yugoslavia (Mr Jiri Dienstbier)
Burundi (Ms Marie-Therese Aissata Keita)
Cambodia (Mr Thomas Hammarberg)
Cyprus (Secretary-General)
Democratic Republic of Congo (Mr Roberto Garreton)
East Timor (Secretary-General)
Equatorial Guinea (Mr Gustavo Gallon Giraldo)
Haiti (Mr Adama Dieng)
Kosovo (Secretary-General)
Iran (Mr Maurice Copithorne)
Iraq (Mr Andreas Mavrommatis)
Myanmar (Mr Rajsoomer Lallah)
Occupied Arab Territories including Palestine (Secretary-General)
Occupied Palestine (Secretary-General)
Palestinian Territories since 1967 (Mr Giorgio Giacomelli)
Somalia (Ms Mona Rishmawi)
Syrian Golan (Secretary-General)
Southern Lebanon and Western Bekaa (Secretary-General)
The Sudan (Mr Leonardo Franco)

Notes:

  • Because these mechanisms are only established on a one-year basis, the list of countries can change relatively rapidly.
  • Sometimes the Secretary-General is asked to prepare a country report in the absence of a rapporteur or independent expert, such as for Sierra Leone for 2000.

Names of current country-specific mechanisms and their holders

UN Staff persons: See Reference Material section for contact names and addresses.

Summary of mechanism:
Country-specific rapporteurs, special representatives of the Commission on Human Rights or the Secretary-General, and independent experts, are mandated to examine the 'situation of human rights' in a particular country. Their mandates are usually renewed on an annual basis. They examine all human rights in that country and so consider the spectrum of civil, political, economic, social and cultural rights. They report annually and publicly to the Commission on Human Rights. They seek information from NGOs and others, and try to visit the country, or countries surrounding the country, of their mandate.

Human Rights Commission: The 1503 Procedure

1) Likely results from use of mechanism

If the Commission on Human Rights is examining a country under the 1503 Procedure, they will either appoint an independent expert or rapporteur on the country, ask the government for more information, and/or recommend action to ECOSOC, or drop the case. Once the Commission has chosen its line of action, the chairperson of the Commission publicly announces which countries have been under consideration, and whether consideration has been terminated, but not what other action is being taken.

2) To which States does the mechanism apply?

All, regardless of ratification of human rights treaties.

3) Who can submit information?

Anyone. NGOs do not have to have consultative status with ECOSOC, but they do have to be acting in good faith with recognized principles of human rights, and be able to show direct, reliable evidence of the situation they are describing.

4) When should information be submitted?

Preferably by July of each year, though the process of consideration is ongoing.

5) Any special rules of procedure for submissions?

Yes. There are criteria for applications:

  • anonymous communications are inadmissible;
  • communications based on mass media reports are inadmissible;
  • communications are inadmissible if they are counter to the principles of the UN Charter or if they show political motivations;
  • the repeated submission of communications dealt with elsewhere by the UN is not acceptable;
  • each communication must describe the facts, the purpose of the communication and the specific rights violated, with references to the treaties or international standards.

6) Any special advice for making a submission to this mechanism?

The advantage of the 1503 Procedure is that it has universal application to all UN Members, regardless of which human rights treaties they have ratified. In addition, those submitting information do not have to be in consultative status with ECOSOC. Although the Procedure is confidential, Commission Members do end up reading the files of those States who end up on the concern list and so at least 53 states will know about the human rights violations going on in a particular State. And, if the State is really of concern to the Commission, action such as collecting further information, or liaison with and assistance to the Government, will be initiated.

The disadvantages are that the procedure takes place with limited public scrutiny, is very lengthy and there is little confirmation of success to individuals or NGOs who have submitted specific information. The information sent to the 1503 Procedure has to be considered as contributing to a larger picture.

7) What happens to the submission? How long will it take?

When a communication is received at the Office of the High Commissioner for Human Rights, it is forwarded to the government concerned who then have 12 weeks to reply. The communication and any replies from governments are summarised for a monthly confidential list for the Working Group of five experts from the Sub-Commission.

This Working Group 'on communications' meets for two weeks prior to the Sub-Commission, in July, to review the list. If three or more experts agree that communications reveal a consistent pattern of violations in a certain country, that country situation is forwarded to the Sub-Commission for consideration.

The Sub-Commission meets in a closed session to decide which situations should be forwarded to the Commission on Human Rights.

A working group consisting of five members of the Commission recommends whether to appoint an independent expert or rapporteur on the country, to ask the government for more information, or to request the Secretary-General to liaise with the country concerned, or to drop the case. The Commission, together with the government concerned, meets in closed session and makes the final decision about any action.

Once the Commission has done this, the chairperson will publicly announce which countries have been under consideration and whether consideration has been terminated.

The process to the Commission can take up to 18 months because of the timing with the Sub-Commission, deadlines to ensure documents are translated, and the period of reply from governments, and then outcomes vary depending on the political attitude to the country under scrutiny. If, for instance, the Commission asks a government for more information, that may mean another year before substantive action is even considered.

The Sub-Commission Working Group on Communications dealt with over 350,000 complaints of violations of human rights between 1972 and 1988 alone, and thousands of replies from governments.

8) How has the mechanism been used in the recent past for conscientious objection?

It is not possible to know if this procedure has been used for CO cases because the procedure is confidential.

Mandate established:
1970, by resolution 1503 of ECOSOC

Mandate next up for renewal:
n/a

UN Staff person:
Ms Eleanor Solo
esolo.hchr@unog.ch Tel:+41229179256 Fax:+41229179011

Summary of mechanism:
A confidential procedure of the Sub-Commission and the Commission on Human Rights aimed at identifying consistent patterns of gross human rights violations. If such a pattern is detected in a country, then that country comes under the scrutiny of the Commission on Human Rights. The mechanism considers all human rights violations and all States.

Human Rights Commission: NGO Statements and Country Resolutions

Although this handbook is primarily about submitting written information to the UNhuman rights system, it is appropriate to mention two other ways that NGOs can influence the Commission on Human Rights: making written and oral statements to the Commission, and influencing the content of country resolutions.

NGO Statements

During the annual session of the Commission on Human Rights, individuals who have been accredited by NGOs who have consultative status with ECOSOC can make oral interventions, and can circulate written statements.

Oral interventions can attract press attention, made as they are in public meetings, and can show state delegates the extent of nongovernmental support. However, there are drawbacks. Usually the effectiveness of an intervention is inversely proportional to the number of interventions made by an NGO, and the number of interventions made by the NGO community. Internationally renowned NGOs are listened to more attentively than less well-known NGOs, though country delegations do listen carefully for allegations against their own government. An intervention at the Commission should really be seen in the context of a larger strategy of an NGO; it should not be the only goal.

Written statements are useful for getting specific proposals such as a draft text or new standard into an official UN document, and circulated to delegates at the meeting in the official languages of the UN. Again, such an initiative should only be considered in the context of a larger strategy of an NGO, because a written statement's effectiveness is limited in and of itself.

Country Resolutions

Country resolutions will ask for specific improvements in individual country situations.

Each resolution is tabled by a State and it is this State which oversees the drafting of the resolution, consulting with other members and observers of the Commission to do so. The starting point for the wording of a resolution is usually the resolution most recently passed by the Commission, which the drafters will try and make stronger or weaker depending on the situation and the politics of that year's Commission.

Recently country resolutions have not included directions on conscientious objection but there should be scope for its inclusion given that so many countries have problems in this area.

[Roles are] played by groups and individuals outside governments who are dedicated to 'causes' and take part indirectly in UN deliberations as 'lobbyists' or 'activists'. While their influence varies with cause and case, it seems reasonable to suppose that their actual role in the political and technical aspects of UN law-making is increasing.

Oscar Schachter, The UN Legal Order: an Overview in Joyner (ed.) The United Nations and International Law

Reference materials

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