Conscientious objection: Legal practices and frameworks among EU member states

Presentation for the Subcommittee on Security and Defence of the European
Parliament

by Andreas Speck, Right to Refuse to Kill Programme, War Resisters' International

1. Introduction

In this presentation I
will give an overview of the right to conscientious objection, its
legal practices and frameworks in the 27 European Union member
states. Before I do so, I want to step back a bit and have a brief
look at the existing international standards about the right to
conscientious objection, as these standards allow us to put the
practices in the EU member states into a perspective.

► Conscientious objection as a right

It is now accepted that
the right to conscientious objection is protected under the right to
freedom of thought, conscience and religion (Article 18 International
Covenant on Civil and Political Rights, Article 9 of the European
Convention of Human Rights), and seen as a legitimate exercise of
this right¹.
The former United Nations Commission on Human Rights has reiterated
this right in several resolutions since 1987².
If there have been any doubts in the past, then the decision of the
United Nations Human Rights Committee from January 2007 on two
individual complaints from South Korea certainly clarified the
issue³.
Subsequently, the United Nations Working Group on Arbitrary
Detention classified any imprisonment of a conscientious objector
as a form of arbitrary detention⁴,
while previously it only saw the second and any subsequent
imprisonment as arbitrary detention.

It is important to note
that article 18(1) of the Covenant, which covers both the right to
freedom of thought, conscience and religion and to manifest it, is
non-derogable even during times of national emergency threatening the
life of the nation.

While there has been
some jurisprudence at the level of the United Nations Human Rights
Committee, the European Court of Human Rights has so far
shied away from ruling on the question whether article 9 of the
European Convention of Human Rights includes the right to
conscientious objection⁵.
It is hard to imagine that following the Human Rights Committee
decision from 23 January 2007, the ECHR would not rule in a similar
manner to the Human Rights Committee in a future case.

Although the right to
conscientious objection is derived from the right to freedom of
thought, conscience and religion, it is clear that it is not limited
to religious convictions. According to the Human Rights Committee's
General Comment No 22, “article 18 protects theistic,
non-theistic and atheistic beliefs”. In fact, the Human Rights
Committee repeatedly recommended to States in its Concluding
Observations “extend the right of conscientious objection
against mandatory military service to persons who hold non-religious
beliefs grounded in conscience”⁶.

The question of
“selective” conscientious objection, not to war in general but to
a particular war, has not been dealt with very much. However, the
United Nations General Assembly, in its resolution 33/165 from 20
December 1978, recognised “the right of all persons to refuse
service in military or police forces which are used to enforce
apartheid”⁷.

It is also important to
note that it is not allowed to exclude groups of people from the
right to conscientious objection, for example for having a gun
license or other reasons.

► Right to conscientious objection at any time – before, during and after
service

Another important
aspect is when an application for conscientious objection can be
made. The general freedom to change one's religion or belief is
recognised in Article 18(1) of the Covenant. Thus, the Human Rights
Committee recognised in its Concluding Observations on Chile, that
“conscientious objection can occur at any time, even when
a person’s military service has already begun”⁸.
The Commission on Human Rights in its resolution 1998/77 highlighted
“that persons performing military service may develop
conscientious objections”⁹.
The European Parliament, in its resolution from 13 October 1989,
called “for the right to be granted to all conscripts at any
time to refuse military service, whether armed or unarmed, on grounds
of conscience”¹⁰.
In its 1994 resolution, the European Parliament explicitly called “on
the Member States of the European Union which do not have (or no
longer have) conscription and military and civilian service
nevertheless to guarantee the fundamental right of conscientious
objection”¹¹.

Council of Europe
Parliamentary Assembly Recommendation 1518 (2001) explicitly
recognised “the right to be registered as a conscientious
objector at any time: before, during or after conscription, or
performance of military service” and “the right for
permanent members of the armed forces to apply for the granting of
conscientious objector status”¹².
The Parliamentary Assembly also demanded from member states on 24
March 2006 in a decision on human rights in the Armed Forces to
“introduce into their legislation the right to be registered as
a conscientious objector at any time, namely before, during or after
implementation of military service, as well as the right of career
servicemen to obtain the status of conscientious objector”¹³.

► Impartial decision making procedure

The United Nations
Commission on Human Rights has welcomed “the fact that some
States accept claims of conscientious objection as valid without
inquiry”, and called for “independent and impartial
decision-making bodies” where this is not the case¹⁴.
More concretely, it has expressed its concern that “the
assessment of applications for such service is solely under the
control of the Ministry of Defence”. It therefore recommended
“placing the assessment of applications for conscientious
objector status under the control of civilian authorities”¹⁵.

► Non-punitive substitute service

It first has to be
noted that there does not have to be a substitute service. However,
if a state decides to require a substitute service from conscientious
objectors, then this substitute service has to be compatible with the
reasons for the conscientious objection, of civilian character, in
the public interest and not of a punitive nature. The term “punitive”
covers not only the duration of substitute service, but also the type
of service and the conditions under which it is served.

In terms of length of
substitute service, the United Nations Human Rights Committee has
made clear in Foin v. France that any difference in length
must be “based on reasonable and objective criteria, such as the
nature of the specific service concerned, or the need for a special
training in order to accomplish that service”¹⁶.
This means that any general difference in length, as is the practice
in many countries, is not permitted.

► Provision of information

It
is obvious that the provision of information about a right is crucial
for people to make use of that right. Therefore, the United Nations
Commission on Human Rights affirmed in its resolution 1998/77 “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”¹⁷.

Council
of Europe Recommendation No. R (87) 8 says that “persons liable
to conscription shall be informed in advance of their rights. For
this purpose, the state shall provide them with all relevant
information directly or allow private organizations concerned to
furnish that information”¹⁸.

2. Practice in European Union member states

From the 27 European
Union member states, 10 presently maintain conscription, although of
these two – Poland and Sweden – are presently in the process of
suspending conscription. However, most countries that did have
conscription in the recent past did not just abolish it, but mainly
suspended to enforce conscription. In most cases these countries
maintain laws and regulations which allow to enforce conscription
under certain circumstances, i.e. in situations of war or an
emergency.

Presently, all
countries of the European Union that maintain conscription do provide
for the right to conscientious objection in some form. However, this
does not mean that this would comply with the international standards
set out in the introduction.

Table 1: Overview:
conscription and the right to conscientious objection in the European
Union

War Resisters' International 2008

A more detailed look is
provided in Table 2. However, in some cases, the details as
prescribed by law are not known.

In several EU Member
States not everyone has a right to conscientious objection. In some
countries, such as Greece, certain groups cannot apply for
conscientious objector status. In Greece, anyone having a gun license
or with a criminal record cannot apply for conscientious objection.
In Estonia, the situation is a bit unclear, but the wording of the
law makes it likely that conscientious objection is only recognised
for religious reasons. The same applies for Lithuania.

In Poland, the right to
conscientious objection is only available in times of peace.

In many countries, the
right to conscientious objection is not available at any time. As
Table 1 shows, this right is often not available during or after
military service. Often, there are strict time limits for the
submission of an application for conscientious objection, which again
limits this right.

Table 2: Practice right to conscientious objection in countries
which enforce conscription

War
Resisters' International, 2009

The decision making
procedure is another issue of concern. In many countries, an
application will be decided by the Ministry of Defence or some
administration under the Ministry of Defence. While in Finland for
example all applications are more or less automatically granted
without examination, and therefore it does not create a problem, in
countries where there is some examination of the reasons given for
conscientious objection, this is much more problematic. In Greece,
non-religious conscientious objectors for example have difficulties
getting recognised by the Ministry of Defence. In Poland, the rate of
accepted CO applications is low, compared to other countries. Only
about 60% of CO applications are granted¹⁹.

Problematic is
especially the issue of substitute service for conscientious
objectors. In most countries – with the exception of Denmark and
Germany – substitute service is longer than military service,
sometimes considerably longer. The European Committee on Social
Rights complained about the length of substitute service in the cases
of Cyprus²⁰,
Estonia²¹,
Greece²²,
and Finland²³.
Also the United Nations Human Rights Committee has repeatedly
complained about the length of substitute service²⁴.

While the Euopean
Committee for Social Rights considers a substitute service of 1.5
times the length of military service as in compliance with the
European Social Charta, the United Nations Human Rights Committee
also considers a substitute service of 1.5 times the length of
military service as punitive in length²⁵.

In some European Union
Member states conscientious objectors face prosecution and
imprisonment. In the case of Greece, this is especially case for some
cases of conscientious objectors going back to the time before Greece
introduced the right to conscientious objection (i.e. the case of
Lazaros Petromelidis²⁶),
or for conscientious objectors who are not recognised.

In Finland, total
objectors, who refuse substitute service for a variety of reasons,
among them often the punitive length of substitute service, are
routinely imprisoned for half the time they would have had to serve.
According to the Union of COs Finland, there are about 60-80 cases
every year.

In Germany, total
objectors face repeated disciplinary punishment by the military
authorities, often 3-4 terms of imprisonment up to a total of 63
days. According to a decree of the Ministry of Defence from 21 April
2008²⁷,
total objectors should not be released from the military before they
have not served at least two arrests of 21 days each. This decree is
a clear violation of Article 14, paragraph 7 of the International
Covenant on Civil and Political Rights, which prohibits the repeated
punishment for the same offence²⁸.

3. Conscientious objection for professional
soldiers

As stated in the
overview, only three European Union Member states – Germany, the
Netherlands, and the United Kingdom – recognise the right to
conscientious objection for professional soldiers.

Countries without the right to conscientious
objection for professional soldiers

In countries where
professional soldiers do not have the right to conscientious
objection, it is likely that those wishing to leave the Armed Forces
for reasons of conscience might seek other ways to get a discharge.
However, these other ways rarely constitute a right to be discharged,
especially in situations of war or an emergency.

The Greek case of
Giorgios Monastiriotis²⁹,
who initially signed up to the Greek navy on a five year contract,
highlights the problems. In May 2003 Giorgos Monstaritiotis
refused to embark with the crew of the battleship "Navarino"
on a mission to the Persian Gulf. He declared his immediate
resignation from the Navy instead. The Navarino was sailing to the
Persian Gulf as part of operation "Enduring Freedom".
Giorgos Monastiriotis gave the following statement prior to
his refusal in May 2003: "Acting on the basis of my
conscience, I refuse to take part or contribute by any means in the
relentless slaughter of the Iraqi people. I refuse to take part in a
war that is not ended, as even now after its official end people and
among them many children are being killed. Even if this war is
officially finished, many more are to come, as war is necessary for
the expansion of the dominance of the ruling powers. I declare my
immediate resignation from the Hellenic Navy, which is a mechanism
that promotes inhuman practices through orders and hierarchy and acts
as a means of extortion and repression of the movement and the
uprisings of the people. My refusal is also the minimal act of
solidarity due to the Iraqi people and to the peaceful sentiments of
the Greek people."

As Greece does not
recognise the right to conscientious objection for professional
soldiers, Giorgios Monastiriotis had no other options than to
simply declare his conscientious objection. What followed were
several trials and prison sentences, and also new call-ups to
military service³⁰.
Giorgios Monastiriotis has been sentenced to 24 months' imprisonment,
suspended for three years, on 31 October 2006, and even today has
still an open case for desertion, following a third call-up to
military service³¹.

The situation is
slightly different in Germany, the Netherlands, and the United
Kingdom, the three countries that recognise the right to
conscientious objection for professional soldiers. However, in these
countries too the situation is not without problems.

Netherlands

In the Netherlands, the
legal basis for the right to conscientious objection for professional
soldiers is only a decree of the Ministry of Defence from 1 January
1994³²,
which extends the law on conscientious objection, which only applies
to conscripts, also to professional soldiers. It is important to note
that according to the Ministry of Defence in 2004, professional
soldiers who have a conscientious objection to particular campaigns
of the armed forces, for example deployment in Iraq, do not have the
right to claim conscientious objection to participation in these
particular campaigns³³.

In practice, there have
been several trials against soldiers refusing to deploy to
Afghanistan. In 2007 the appeal court in Arnhem acquitted a soldier
who refused to deploy to Afghanistan, after he had initially been
sentenced to two months imprisonment. There was also a second case of
refusal, which lead to a prosecution. However, a second person has
also been finally acquitted in December 2007³⁴.

Presently, War
Resisters' International is not aware of any statistics on the number
of applications for a discharge as conscientious objector in the
Netherlands.

Germany

In Germany, the right
to conscientious objection applies equally to conscripts and
professional soldiers.

Table 3:
Conscientious objection – applications from soldiers since 2001

Source:
Antwort des Parlamentarischen Staatssekretärs Thomas Kossendey, 9
May 2007³⁵

Problematic
is especially that the military authorities regard a release from the
armed forces which is based on conscientious objection as a release
on someone's own initiative. This means that a professional soldier
who has been recognised as a conscientious objector needs to pay back
the costs of any courses that (s)he has followed in the military and
that have a civilian use. This can lead to a considerable financial
burden, almost making it impossible to leave the Armed Forces.

The case of
Florian Pfaff highlighted another problem with the right to
conscientious objection. However, as Florian Pfaff did not claim
conscientious objection, but refused an order that he regarded as
illegal, his case falls more under the category of the right to
refuse illegal orders. In its judgement, the Bundesverwaltungsgericht
however acquitted Florian Pfaff based on freedom of conscience. The
Bundesverwaltungsgericht stated in its judgement: “A soldier
does not have to carry out an order, on the ground that it is
unreasonable, if he can invoke protection of the fundamental right to
freedom of conscience (Article 4(1) of the Basic Law). The protection
afforded by Article 4(1) of the Basic Law is not overridden by the
fundamental right to recognition as a conscientious objector (Article
4(3) of the Basic Law).” And: “If (...) the soldier still
maintains that his conscience will not allow him to carry out the
order, and if this is understandable in the sense described earlier,
then a compromise must be reached which protects both sides (use
elsewhere, transfer, reassignment, etc.).”³⁶

United Kingdom

In the
United Kingdom, each of the three branches of the Armed Forces has
its own regulations governing the right to conscientious objection.
Especially problematic is that the regulations governing the right to
conscientious objection are not in the public domain, and information
is difficult to obtain by members of the public, and also by members
of the Armed Forces. In addition, decision making on an application
for conscientious objection in the first instance is by the
respective branch of the Armed Forces itself, and not by an
independent body. Only the appeal body – the Advisory Committee on
Conscientious Objectors – is an independent body.

The
regulations are:

• Instruction
  006 – Retirement or Discharge on Grounds of Conscience for the
  Army, including the Territorial Army;

  
  

• AP3392
  Vol 5. Leaflet 113, Procedure for Dealing with Conscientious
  Objectors within the Royal Air Force for the Air Force;

  
  

• Personnel,
  Legal, Administrative and General Orders 0801, Application for
  Discharge on Grounds of Conscientious Objection for the Navy.

  
  
  
  

While the
application procedure is similar for the three branches of the Armed
Forces, there are also important differences.

It has to be
pointed out that for all three services an application for discharge
on grounds of conscience does not prevent deployment. During the time
the application is being processed, the applicant remains a member of
the Armed Forces with all duties this implies. There is no right to
ask for service without arms during the processing of the CO
application.

The
regulations for the Royal Air Force also do not allow an application
for conscientious objection from a soldier who is absent without
leave or a deserter, or subject of outstanding disciplinary action.
This is problematic as it is not uncommon for conscientious objectors
to go absent without leave for a short period, as especially
experience from the United States of America shows.

There are
very few cases of conscientious objection in the UK Armed Forces³⁷.
One explanation for this is the lack of information. This lack of
access to and knowledge about the right to conscientious objection
has also been an issue in the case of reservist Leading Aircraftsman
Mohisin Khan, who went absent without leave when recalled for
service. He claimed that he was not aware of the right to
conscientious objection. In its judgement, the High Court says “It
is, however, true that the call-out materials in this case, like the
1997 Regulations, do not mention conscientious objection expressly.
In that respect, it would seem that the information provided to the
recalled reservist could be improved”³⁸.

According to
military law expert Gilbert Blades, who represents soldiers at courts
martial, the numbers leaving because of Iraq are often obscured as
they were not counted as conscientious objectors³⁹.

Two
high-profile cases of Iraq war resisters underline this point.
Benjamin Griffin, a former SAS soldier, refused to return to Iraq
while on leave in March 2005 after three month of service in Baghdad.
Unexpectedly, he was discharged from the army “with a glowing
testimonial”⁴⁰.

Malcolm
Kendall-Smith, a medical officer in the Royal Air Force, fared less
well. He refused to serve in Iraq in July 2005, and was subsequently
court-martialed, and sentenced to eight month imprisonment, plus a
discharge from the Air Force⁴¹.

Both cases
are again on the borderline to the right to refuse illegal orders.

4. Conclusions

While all European Union Member states that
practice conscription recognise the right to conscientious objection
for conscripts, the implementation of this right is in most cases not
compliant with the international standards as set out by United
Nations bodies, the Council of Europe, and the European Parliament.

Only very few countries accept an application for
conscientious objection at any time – before, during and after
military service – and in many cases the decision making procedure
is not impartial. Also, in many cases the substitute service is of
punitive length.

Regarding the right to conscientious objection for
professional soldiers, the situation is even worse. Only three out of
the 27 European Union Member states recognise the right to
conscientious objection for professional soldiers. Also in these
three countries, there are still a range of problems in practice.