On 14 October 2009, the Constitutional Court of Colombia ruled on a "demand of unconstitutionality" submitted by several Colombian organisations in March 2009 (see CO-Update No 46, April 2009). Suprisingly, the Court ruled that the right to conscientious objection to military service is protected under the Colombian constitution. The Court gave it as a task to the Colombian Congress to now pass a law on conscientious objection to military service.
In their original submission to the Constitutional Court, the claimants claimed that article 27 of law 48/1993 on military recruitment is unconstitutional, as it does not include an exemption for conscientious objectors. The Constitutional Court, however, ruled that this article is constitutional, but nevertheless recognised the right to conscientious objection to military service. Judge Nilson Pinilla, the president of the Constitutional Court, said that the Armed Forces "should analyse each case individually and if persons consider that their rights have been violated they can claim so using a tutela (writ for protection)".
It is important to note that with this judgement the Court overturns its past jurisprudence (dating from the 1990s), in which it stated clearly that the right to conscientious objection to military service is not protected under the Colombian Constitution. Thus, this judgement is a huge step forward.
The judgement follows a positive statement of the Procuraduria de la Nacion from August 2009, in which the Procuraduria recommended to recognise the right to conscientious objection and to introduce a substitute civilian service, as recommended by the United Nations Human Rights Committee. In 2008, the Working Group on Arbitrary Detention also evaluated two cases of conscientious objectors from Colombia, and came to the conclusion that their forced recruitment to the Armed Forces constituted arbitrary detention (see CO-Update No 42, October 2008).
Now it is up to the Colombian Congress to legislate for the right to conscientious objection to military service. As there is a conservative majority, it has to be feared that any legislation on conscientious objection to military service will be very restrictive, and will not comply with international standards.
It also remains to be seen how the military will honour the judgement of the Constitutional Court. As long as the 'batida' is a widespread form of recruitment to the military, it will be extremely difficult for conscientious objectors to claim their constitutional right to conscientious objection.
Sources: Corte Constitucional de Colombia: Comunicado No 43, 14 October 2009; El Spectador: Corte acepta objeción de conciencia para no prestar servicio militar, 15 October 2009; El Tiempo: Objeción de conciencia frente al servicio militar fue respaldada por la Corte Constitucional, 16 October 2009; Christian Today: Pacifist youth gain right to opt out of military in Colombia, 29 October 2009