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International Standards on Conscientious Objection to Military Service and Alternative Service applicable to Colombia

FRIENDS WORLD COMMITTEE FOR CONSULTATION (QUAKERS) www.quno.org

Rachel Brett

Introduction

The issue of conscientious objection to military service has been addressed within the United Nations (UN) human rights system in a number of ways, but most notably through resolutions of the (former) UN Commission on Human Rights, through the Special Procedures of the (now) Human Rights Council,[1] and through the Human Rights Committee[2] in both individual cases and when considering State reports under the International Covenant on Civil and Political Rights, as well as in their General Comment 22 on Article 18 of the Covenant.[3]

All of these are directly relevant to the situation of conscientious objection to military service in Colombia. Colombia is a party to both the International Covenant on Civil and Political Rights (ratified 29 October 1969), and its First Optional Protocol which enable the submission of individual complaints.

In 2004 the Human Rights Committee highlighted the lack of provision for conscientious objection to military service in its Concluding Observations on the State report of Colombia under the Covenant:

"17. The Committee notes with concern that the legislation of the State party does not allow conscientious objection to military service.

The State party should guarantee that conscientious objectors are able to opt for alternative service whose duration would not have punitive effects (arts. 18 and 26)."[4]

The UN Standards

The right of conscientious objection to military service:

Both the Human Rights Committee and the UN Commission on Human Rights have recognised the right of conscientious objection to military service as part of the right to freedom of thought, conscience and religion enshrined in Article 18 of both the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights.

Since 1989, Resolutions of the UN Commission on Human Rights (adopted without a vote), have recognized "the right of everyone to have conscientious objections to military service as a legitimate exercise of the right to freedom of thought, conscience and religion".[5]

The Human Rights Committee identifies conscientious objection to military service as a protected form of manifestation of religious belief within Article 18(1) of the Covenant. In its most recent and definitive case[6] on the subject (Mr. Yeo-Bum Yoon and Mr. Myung-Jin Choi v Republic of Korea), it held that the Republic of Korea had violated Article 18 by not providing for conscientious objection to military service for two Jehovah's Witnesses.

The Committee laid to rest suggestions that conscientious objection is not recognised in the Covenant either because it was not included specifically (an argument it had already addressed in its General Comment 22 on Article 18)[7], or because of the reference to conscientious objection which is included in Article 8. Article 8 concerns the prohibition of forced labour. Its paragraph 3 states that for these purposes, the term forced or compulsory labour does not include "any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors". The Committee stated "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".[8]

Under the Covenant, Article 18(1), which covers both the right to freedom of thought, conscience and religion and the right to manifest one's religion or belief, is non-derogable even during times of national emergency threatening the life of the nation.[9] Some restrictions on the right to manifest one's religion or belief are permitted by Article 18(3) of the Covenant. These restrictions are, however, only those which are "prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others." The Human Rights Committee has made clear that any "such restriction must not impair the very essence of the right in question".[10] Thus these possible limitations cannot be used to justify or excuse making no provision for conscientious objection.[11]

Scope/extent of the right of conscientious objection:

The identification of conscientious objection to military service as a manifestation of religion or belief does not mean that it can only be based on a religious belief. The Human Rights Committee in General Comment 22 simply referred to situations where "the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief" (para. 11). However, earlier in the General Comment, it had given a broad scope to the terms religion and belief, stating[12] "Article 18 protects theistic, non-theistic and atheistic beliefs, ... Article 18 is not limited in its applications to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions" (para. 2). The Committee has specifically addressed this issue in Concluding Observations on State reports under the Covenant, calling, for example, on Ukraine to "extend the right of conscientious objection against mandatory military service to persons who hold non-religious beliefs grounded in conscience, as well as beliefs grounded in all religions".[13]

This broad basis ties in with Commission on Human Rights resolution 1998/77 which recognises "that conscientious objection to military service derives from principles and reasons of conscience, including profound convictions, arising from religious, moral, ethical, humanitarian or similar motives".

In other words, it is clear that although conscientious objection may be based on a formal, religious position, this is not required. Indeed, both the Committee and the Commission have made clear that no discrimination is permitted between the religion or belief on which the objection is based.[14]

As the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights both recognize the right to change one's religion or belief,[15] it is also clear that a person can become a conscientious objector, even if they originally agreed to undertake compulsory military service, or even volunteered to join the armed forces. This is explicitly recognized in UN Commission on Human Rights resolution 1998/77 which states: "persons performing military service may develop conscientious objections".

Thus, any arrangements for conscientious objectors cannot be such as to prevent applications after joining the armed forces, or even after completion of military service, for example by those listed as reservists or subject to further regular or periodic call-up or training.

Equally, any payment in lieu of military service is not the same as, nor a substitute for, recognition of conscientious objection.[16]

Decision-making process:

Trying to judge another person's conscience or the sincerity of their belief is an inherently difficult task. The UN Commission on Human Rights has welcomed "the fact that States accept claims of conscientious objection as valid without inquiry" (Resolution 1998/77) but if there is to be an inquiry then it must be undertaken by an "independent and impartial decision-making" body. The Human Rights Committee has commented that this means under the control of civilian authorities and not of the Ministry of Defence.[17]

Alternative Service:

Alternative Service in lieu of compulsory military service is not required[18] but is not prohibited, provided that it is compatible with the reasons for the objection, of a civilian character, in the public interest and not of a punitive nature. In addition to civilian alternative service, unarmed military service may be provided for those whose objection is only to personally bearing arms (Resolution 1998/77). The term "punitive" covers not only the duration of alternative service but also the type of service and the conditions under which it is served.

Duration of alternative service

The question of the length of alternative service in comparison to the length of military service has been the subject of a number of cases considered by the Human Rights Committee. However, in 1999 the Committee settled (Foin v France) on the test which it has subsequently applied. This starts from the requirement that the alternative service must not be discriminatory. However, this does not preclude a different duration to that of military service but any difference in length in a particular case 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."[19]

Non discrimination

As already mentioned, no discrimination is permitted "among conscientious objectors on the basis of the nature of their particular beliefs".[20]

Equally no discrimination as to the terms or conditions of service is permitted in law or practice between those who do military service and those who do alternative service. Nor may conscientious objectors subsequently be subjected to discrimination in relation to any economic, social, cultural, civil or political rights because they have not done military service.[21]

Access to information about conscientious objection:

The importance of making information available to all affected by military service (not only to first time conscripts) is stressed by UN Commission on Human Rights resolution 1998/77, and has also been taken up by the Human Rights Committee in Concluding Observations, to ensure that people know about the right of conscientious objection and also how to acquire conscientious objector status.[22]

Punishment of unrecognised conscientious objectors:

The UN standards establish three essential points in relation to the punishment of unrecognised conscientious objectors whether the lack of recognition arises because there is no provision for conscientious objection or because the individual concerned is not accorded such status in a situation where there is some provision:

  1. Conscientious objectors should not be imprisoned for their refusal to do military service (resolution 1998/77);
  2. Conscientious objectors should not be subjected to the death penalty for their refusal to undertake military service or for desertion resulting from their conscientious objection[23]
  3. Conscientious objectors should not be subjected to repeated punishment because the continued refusal to undertake military service constitutes the same offence and, therefore, repeated punishment contravenes the non bis in idem principle (resolution 1998/77) and Article 14 of the Covenant.[24] It also contravenes Article 18(2) of the Covenant since it amounts to coercion intended to change the convictions of the conscientious objector.[25]

Conclusion

Conscientious objection to military service is recognised in international law as a legitimate exercise or manifestation of the right to freedom of thought, conscience and religion enshrined in Article 18 of the Universal Declaration of Human Rights as well as Article 18 of the International Covenant on Civil and Political Rights (to which Colombia is a party). Colombia should, therefore, make provision for conscientious objection to military service in its domestic law as soon as possible and implement it in practice. Implementation in practice also requires that information about conscientious objector status and how to apply for it is available to (potential) conscripts and that recruitment methods permit such applications to be made and acted on.[26]

8 May 2007

Notes

[1] The UN Human Rights Council replaced the UN Commission on Human Rights in 2006. It is the main UN intergovernmental human rights body, as the Commission was before it.
[2] The Human Rights Committee is the body of independent experts which oversees the implementation of the International Covenant on Civil and Political Rights. All States parties to the Covenant are required to report to the Committee on a regular basis. The Committee questions them and adopts Concluding Observations highlighting improvements needed as well as progress made. The Committee also produces General Comments clarifying and interpreting the Covenant's provisions. In those States which are also parties to the First Optional Protocol, individuals can send the Committee complaints alleging violations of the Covenant.
[3] Human Rights Committee General Comment No. 22 (CCPR/C/21/Rev.1/Add.4, 30 July 1993), 'The right to freedom of thought, conscience and religion ( Article 18)'
[4] COLOMBIA (CCPR/CO/80/COL) 80th session (2004)
[5] UN Commission on Human Rights Resolution 1998/77, 'Conscientious Objection to Military Service', which has been reaffirmed in all subsequent UN Commission resolutions on this subject.
[6] Mr. Yeo-Bum Yoon and Mr. Myung-Jin Choi v Republic of Korea (CCPR/C/88/D/1321-1322/2004 of 23 January 2007)
[7] In 1993, the Human Rights Committee stated in its General Comment 22 on Article 18 that a claim of conscientious objection to military service could derive from the right to freedom of thought, conscience and religion inasmuch as the use of lethal force seriously conflicted with the individual's convictions.
[8] This was an important clarification as in an early case (L.T.K. v Finland (Case No. 185/1984)), while ruling the case out at a preliminary stage, the Committee had suggested that the wording of Article 8 precluded a requirement on all States to provide for conscientious objection to military service. A similar argument has arisen under the European Human Rights Convention Article 4(3)(b) and Article 6(3)(b) of the American Convention on Human Rights which are almost identical to Article 8(3)(c)(ii) of the Covenant.
[9] International Covenant on Civil and Political Rights, Article 4
[10] Mr. Yeo-Bum Yoon and Mr. Myung-Jin Choi v Republic of Korea (CCPR/C/88/D/1321-1322/2004 of 23 January 2007)
[11] In its General Comment 22, the Human Rights Committee observed that "national security" is not one of the permitted grounds of limitation listed in Article 18, unlike in relation to some other Articles of the Covenant.
[12] Human Rights Committee General Comment 22, para. 2
[13] Human Rights Committee, Concluding Observations on the Ukraine, November 2006 (CCPR/C/UKR/6), para. 12
[14] Human Rights Committee General Comment 22, para 11; Commission on Human Rights Resolution 1998/77
[15] See also Human Rights Committee General Comment 22, para. 5
[16] Human Rights Committee, Concluding Observations on Syria (CCPR/CO/84/SYR), 2005, para. 11
[17] Human Rights Committee Concluding Observations on Greece (CCPR/CO/83/GRC)
[18] See, for example, Friendly Settlement in Alfredo Diaz Bustos v Bolivia, Case 14/04, Report No. 97/05, Inter-Am. C.H.R., OEA/Ser.L/V/II.124 Doc. 5 (2005)
[19] Foin v France (Communication No. 666/1995), CCPR/C/D/666/1995, 9 November 1999
[20] Human Rights Committee General Comment 22, para. 11
[21] Human Rights Committee General Comment 22, para. 11; Commission on Human Rights resolution 1998/77
[22] Human Rights Committee Concluding Observations on Paraguay (CCPR/C/PRY/CO/2), 2005, para 18.
[23] UN Sub-Commission on the Promotion and Protection of Human Rights resolution 1994/4
[24] Human Rights Committee Concluding Observations on Cyprus.
[25] Working Group on Arbitrary Detention Recommendation No. 2 (E/CN.4/2001/14)
[26] The Inter-American Commission on Human Rights (Piché Cuca v Guatemala, Report No. 36/93, Case 10.975, and Fourth Report on the Situation of Human Rights in Guatemala, QEA, Ser.L/V/II,83; Doc. 16 rev.; June 1, 1993, chapter III) has found that forced recruitment is a violation of the rights of personal liberty, human dignity and freedom of movement under the American Convention on Human Rights, and has noted that the conscription process must enable the individual to challenge the legality of their recruitment.