European Court of Human Rights decides against conscientious objection

In a judgement on a case of a conscientious objector from Armenia, the European Court of Human Rights in Strasbourg today decided against the right to conscientious objection.

In its judgement, the Court reviewed old case law:
The Commission found that Article 9, as qualified by Article 4 § 3 (b), did not impose on a state the obligation to recognise conscientious objectors and, consequently, to make special arrangements for the exercise of their right to freedom of conscience and religion as far as it affected their compulsory military service. It followed that these Articles did not prevent a State which had not recognised conscientious objectors from punishing those who refused to do military service (no. 5591/72, Commission decision of 2 April 1973, Collection 43, p. 161).
The finding that the right of conscientious objection was not guaranteed by any article of the Convention was upheld by the Commission on numerous subsequent occasions (see, mutatis mutandis, N. v. Sweden, no. 10410/83, Commission decision of 11 October 1984, DR 40, p. 203; Autio v. Finland, no. 17086/90, Commission decision of 6 December 1991, DR 72, p. 245; Peters, cited above; and Heudens, cited above).

The Court does not deny that the majority of member states of the Council of Europe have indeed adopted laws providing for various forms of alternative service for conscientious objectors. At the same time, the Court cannot overlook the provisions contained in Article 4 § 3 (b) of the Convention summarised above (see paragraphs 56-57 above). In the Court's opinion, since this Article clearly left the choice of recognising conscientious objectors to each Contracting Party, the fact that the majority of the Contracting Parties have recognised this right cannot be relied upon to hold a Contracting Party which has not done so to be in violation of its Convention obligations. Consequently, as far as this particular issue is concerned, this factor cannot serve a useful purpose for the evolutive interpretation of the Convention. In such circumstances, the Court concludes that Article 9, read in the light of Article 4 § 3 (b), does not guarantee a right to refuse military service on conscientious grounds.

This judgement is a huge disappointment. The Court did not even mention more recent case law of the UN Human Rights Committee under the International Covenant on Civil and Political Rights (ICCPR), especially the case Yeo-Bum Yoon and Mr. Myung-Jin Choi vs. Republik of Korea (23 January 2007), which clearly stated that not to provide for the right to conscientious objection constitutes a violation of article 18 of the ICCPR, which is equivalent to article 9 of the European Convention of Human Rights.
In this decision, the Human Rights Committee dealt with exactly the same argument relating to the prohibition of forced labour:
"The Committee notes the authors’ claim that article 18 of the Covenant guaranteeing the right to freedom of conscience and the right to manifest one’s religion or belief requires recognition of their religious belief, genuinely held, that submission to compulsory military service is morally and ethically impermissible for them as individuals. It also notes that article 8, paragraph 3, of the Covenant excludes from the scope of “forced or compulsory labour”, which is proscribed, “any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors”. It follows that the 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, the understanding of which evolves as that of any other guarantee of the Covenant over time in view of its text and purpose."

The European Court of Human Rights, however, seems to be stuck in the old argument that the exclusion of military and substitute service where it exists from the definition of forced labour basically is a statement also regarding the right to conscientious objection.

The only positive aspect in the judgement is the dissenting opinion of judge Power, who states that "[a]dopting the Court's general approach to interpreting and applying the Convention in the light of current legal norms and standards I cannot but conclude that there has been a violation of Article 9 in this case."

And: "In view of the foregoing, it would appear that the majority's finding is not just incompatible with current European standards on the question of conscientious objection but that it parts company with the Court itself in terms of the overall direction of the jurisprudence as discernible in the case law."

This means for now the European Court of Human Rights is not the way to go for conscientious objectors. The only chance to get recognition of the human right to conscientious objection will be to file individual complaints under the International Covenant on Civil and Political Rights with the United Nations Human Rights Committee.

Andreas Speck, 27 October 2009