Now any detention of conscientious objectors seen as arbitrary detention
One more in the series of legal victories for conscientious objectors in Turkey: The United Nations Working Group on Arbitrary Detention dealt with the case of imprisoned Turkish conscientious objector Halil Savdain its session on 9 May 2008, and came to the conclusion that "the deprivation of liberty of Mr. Halil Savda during the periods between 16 and 28 December 2004, between 7 December 2006 and 2 February 2007, as well as between 5 February and 28 July 2007 was arbitrary. HisÂ deprivation of liberty since 27 March 2008 is also arbitrary, being in contravention of articles 9 and 18 of the Universal Declaration of Human Rights and of articles 9 and 18 of the International Covenant on Civil and Political Rights".
Halil Savda is presently serving a prison sentence, but has now been declared "unfit" for military service, which at least means the present sentence will be the last one for his conscientious objection to military service.
This has not been the first time the Working Group on Arbitrary Detention has dealt with detention of conscientious objectors. In 1999, the Working Group issued an opinion on the repeated imprisonment of Turkish conscientious objector Osman Murat Ãœlke (Opinion No 36/1999). In 2003, the Working Group dealt with several cases of Israeli conscientious objectors (Opinion No 24/2003). In both cases, the conclusion of the Working Group had been that every imprisonment of a conscientious objector after the initial imprisonment was considered arbitrary, violating the principle of ne bis in idem, which prohibits the repeated punishment for the same offence. In its opinion on Israel, the Working Group said: "The second and subsequent deprivations of liberty of Matan Kaminer, Adam Maor, Noam Bahat and Jonathan Ben-Artzi are contrary to article 14, paragraph 7, of the International Covenant on Civil and Political Rights. The non-observance of the international norms relating to the right to a fair trial is of such gravity as to confer on the deprivation of liberty an arbitrary nature".
In its opinion on the case of Halil Savda, the Working Group goes further and says that any deprivation of liberty has to be seen as arbitrary. Following the decision of the Human Rights Committee on two South Korean cases from 23 January 2007, which stated clearly that states have an obligation to recognise the right to conscientious objection, and that not to recognise this right constitutes a violation of article 18 of the International Covenant on Civil and Political Rights (see co-update No 27, February/March 2007), the Working Group too considers any detention of a conscientious objector as following from the violation of article 18, and therefore to be arbitrary.
This is good news for conscientious objectors in countries where their right is not recognised, as it adds to the body of international legal opinions and case law stating very clearly that there is a right to conscientious objection in international law. Unfortunately, this does not necessarily have an immediate effect. Opinions of the Working Group on Arbitrary Detention are not legally binding (unlike decisions of the Human Rights Committee on individual complaints), and so the new opinion of the Working Group on Halil Savda will not lead to Halil Savda's release from prison. But it will put more pressure on the Turkish government to solve the problem of conscientious objection.
Sources: Working Group on Arbitrary Detention: Opinion No. 16/2008 (Turkey), Opinion No 36/1999 (Turkey), Opinion No 24/2003 (Israel).