European and International Standards on Conscientious Objection to Military Service

Presentation at the Regional conference on conscientious objection and civilian service "To Europe Through Conscientious Objection and Civilian Service", Sarajevo, 20-22 September 2004

Rachel Brett, Quaker United Nations Office

The right to conscientious objection to military service derives from the right to freedom of thought, conscience and religion which is set out in the Universal Declaration of Human Rights (Article 18), the International Covenant on Civil and Political Rights (Article 18) and the European Human Rights Convention (Article 9). It has been spelled out explicitly in resolutions of the UN Commission on Human Rights,[1] the European Parliament,[2] the Parliamentary Assembly of the Council of Europe[3] and Recommendation R(87)8 of the Committee of the Ministers of the Council of Europe.

The combination of these identifies the following key characteristics.

The right to freedom of thought, conscience and religion is an unqualified and non-derogable right under the International Covenant on Civil and Political Rights (ICCPR)[4]. This means that it applies in times of war or public emergency threatening the life of the nation as well as in peacetime. Nor is the manifestation of this right subject to limitations on the grounds of national security, unlike some of the other rights under either the Covenant or the European Convention on Human Rights (ECHR).[5]

Since Article 9 of the ECHR explicitly includes the right to change one's religion or belief, no temporal limit can be placed on becoming a conscientious objector to military service. It must be available to serving soldiers and reservists as well as to new recruits.[6] Although the question of conscientious objection to military service arises most frequently in the context of conscription, it can arise even when the original decision to join the armed forces was voluntary.[7]

Although based on the right to freedom of thought, conscience and religion, conscientious objection is not limited to religious grounds but derives from principles and reasons of conscience, including profound convictions, arising from religious, ethical, moral, humanitarian, philosophical or similar motives[8] and no discrimination is permitted amongst conscientious objectors on the basis of the nature of their particular beliefs.[9]

Recognising the inherent difficulty of judging another person's conscience, resolutions of the European Parliament[10] have identified the making of a "declaration setting out the individual's motives" as being sufficient in most cases, and the UN Commission on Human Rights, "Welcomes the fact that some States accept claims of conscientious objection as valid without inquiry".[11]

However, if this procedure is not followed, at a minimum there must be an "independent and impartial" decision-making body to determine whether a conscientious objection is genuinely held in a specific case, irrespective of the stage of military life at which it is invoked[12], with a process that contains all the guarantees necessary for a fair trial, including an appeal process.[13] The military, including the Ministry of Defence, are not "independent and impartial" in this context - the process must be "entirely separate from the military authorities".[14]

The nature of the alternative service must be civilian, including under civilian administration, compatible with the reasons for the conscientious objection, in the public interest and not of a punitive nature. There must be no discrimination between those doing military and those doing alternative civilian service - either at the time or subsequently - in relation to their terms or conditions of service, or any economic, social, cultural, civil or political rights.[15] Any disparity in length between alternative service and military service must be based on "objective and reasonable criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish the service". This is now the established test applied by the Human Rights Committee in cases on this under the International Covenant on Civil and Political Rights.[16]

Finally, there is an obligation to inform "all persons affected by military service" about the right to conscientious objection and the means of acquiring conscientious objector status".[17] The failure to provide adequate and effective information could amount to a failure to fulfil the right or to a form of discrimination in that only those who have access to sources of information are able to claim their right.

Notes

[1] In particular Resolutions 1998/77; 2000/34; 2002/45 and 2004/35
[2] The Macciocchi (1983), Schmidbauer (1989), De Gucht and Bandrés & Bindi resolutions
[3] Resolution 337 and Recommendation 478 (1967), Recommendation 816 (1977), Resolution 1042 (1994), and Recommendation 1518 (2001)
[4] International Covenant on Civil and Political Rights Article 4(2): "No derogation from article 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision".
[5] ICCPR, Article 18(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." ECHR, Article 9(2): "Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others."
[6] This is stated explicitly in Recommendation 1518 (2001) of the Parliamentary Assembly of the Council of Europe and the De Gucht Resolution.
[7] UN Commission on Human Rights (UNCHR) resolution 1998/77 explicitly acknowledges this, "Aware that persons performing military service may develop conscientious objections". See also Recommendation R(87)8 of the Committee of the Ministers of the Council of Europe and Recommendation 1518 (2001) of the Parliamentary Assembly of the Council of Europe.
[8] UNCHR resolution 1998/77; Recommendation 816 (1977)
[9] Human Rights Committee General Comment 22; UNCHR resolution 1998/77
[10] Schmidbauer resolution; Macciocchi resolution
[11] UNCHR Resolution 1998/77
[12] Report submitted by Mr Emmanuel Decaux: Issue of the administration of justice through military tribunals (E/CN.4/Sub.2/2004/7 of 14 June 2004), Principle No. 12
[13] Committee of Ministers Recommendation R(87)8
[14] Recommendation 337 (1967) of the Committee of Ministers of the Council of Europe
[15] Human Rights Committee General Comment 22, UNCHR resolution 1998/77, Committee of Ministers Recommendation R(87).
[16] Foin v France (666/1995), ICCPR, A/55/40, vol.II (3 November 1999)
[17] CHR 1998/77; the Schmidbauer resolution explicitly "Calls for call-up papers to be accompanied ... by a statement on the legal position with regard to conscientious objection"; similarly Resolution 337 (1967) and Recommendation 816 (1977).