Landmark decision of UN Human Rights Committee on right to conscientious objection

The United Nations' Human Rights Committee passed a landmark decision on the right to conscientious objection when deciding on the individual complaints of two Korean conscientious objectors at its 88th session on October/November 2006.

In its decision, the Human Rights Committee concluded that the Republic of Korea had violated the right to freedom of thought, conscience, and religion as guaranteed by Article 18 of the ICCPR when denying the two applicants their right to conscientious objection.

A little background: South Korea does not recognise the right to conscientious objection. On 15 July 2004 the South Korean Supreme Court ruled that their is no right to conscientious objection, and 26 August 2004 the Constitutional Court came to a similar conclusion in a separate case (see co-update No 1, September 2004). With these two decision, the legal route in South Korea itself was closed.

The two cases that have been brought to the Human Rights Committee were two cases of Jehovah's Witness COs. Both had been sentenced to 18 months imprisonment for refusing military service, and both their sentenced had been upheld by the Supreme Court in its decision on 15 July 2004.

The Human Rights Committee uses its decision to clarify some confusion around the issue of the right to conscientious objection:

• The Committee "also notes that article 8, paragraph 3, of the Covenant excludes from the scope of "forced or compulsory labour", which is proscribed, "any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors". It follows that the article 8 of the Covenant itself neither recognizes nor excludes a right of conscientious objection. Thus, the present claim is to be assessed solely in the light of article 18 of the Covenant, the understanding of which evolves as that of any other guarantee of the Covenant over time in view of its text and purpose." This clarification was necessary because exactly this argument had been used by the Inter-American Commission on Human Rights in its judgement from 10 March 2005 on CO cases from Chile (see co-update No 13, September 2005). In this decision, the Commission wrote: "In summary, and as will be concisely reviewed below, international human rights jurisprudence recognizes the status of conscientious objectors in countries that provide for such status in their national laws.  In countries that do not provide for conscientious objector status, the international human rights bodies find that there has been no violation of the right to freedom of thought, conscience or religion."
• The Human Rights Committee also recalled its General Comment 22, "that to compel a person to use lethal force, although such use would seriously conflict with the requirements of his conscience or religious beliefs, falls within the ambit of article 18. The Committee notes, in the instant case, that the authors' refusal to be drafted for compulsory service was a direct expression of their religious beliefs, which it is uncontested were genuinely held. The authors' conviction and sentence, accordingly, amounts to a restriction on their ability to manifest their religion or belief. Such restriction must be justified by the permissible limits described in paragraph 3 of article 18, that is, that any restriction must be prescribed by law and be necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others. However, such restriction must not impair the very essence of the right in question."
• "The Committee notes that under the laws of the State party there is no procedure for recognition of conscientious objections against military service. The State party argues that this restriction is necessary for public safety, in order to maintain its national defensive capacities and to preserve social cohesion. The Committee takes note of the State party's argument on the particular context of its national security, as well as of its intention to act on the national action plan for conscientious objection devised by the National Human Rights Commission (see paragraph 6.5, supra). The Committee also notes, in relation to relevant State practice, that an increasing number of those States parties to the Covenant which have retained compulsory military service have introduced alternatives to compulsory military service, and considers that the State party has failed to show what special disadvantage would be involved for it if the rights of the authors' under article 18 would be fully respected. As to the issue of social cohesion and equitability, the Committee considers that respect on the part of the State for conscientious beliefs and manifestations thereof is itself an important factor in ensuring cohesive and stable pluralism in society. It likewise observes that it is in principle possible, and in practice common, to conceive alternatives to compulsory military service that do not erode the basis of the principle of universal conscription but render equivalent social good and make equivalent demands on the individual, eliminating unfair disparities between those engaged in compulsory military service and those in alternative service. The Committee, therefore, considers that the State party has not demonstrated that in the present case the restriction in question is necessary, within the meaning of article 18, paragraph 3, of the Covenant."

In conclusion, the Human Rights Committee, "acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, concludes that the facts as found by the Committee reveal, in respect of each author violations by the Republic of Korea of article 18, paragraph 1, of the Covenant.

In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation to provide the authors with an effective remedy, including compensation. The State party is under an obligation to avoid similar violations of the Covenant in the future."

In effect, this will mean that South Korea will need to provide for the right to conscientious objectors, in order to avoid future violations of article 18, paragraph 1.

The decision is highly important also for other countries. While in the past the Human Rights Committee has routinely requested from states to introduce the right to conscientious objection where it doesn't exist when reviewing country reports, there has not been a decision on an individual case. The decision on the two South Korean cases establishes important case law, which can also be used by conscientious objectors from other countries. It can only be hoped that the Inter-American Commission on Human Rights will in the near future correct its decision on Chile from 2005, which is not in line with the view of the Human Rights Committee, and that also the European Court of Human Rights will in future decide on a CO case on the right to CO.

Source: CCPR/C/88/D/1321-1322/2004, 23 January 200