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Selective Conscientious Objection and International Human Rights

Published online by Cambridge University Press:  04 July 2014

Leonard Hammer
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Abstract

The development of an international status for military conscientious objection received a strong backing by pronouncements from bodies like the Human Rights Committee that the capacity for objection can derive from the international human right to freedom of religion or belief of the International Covenant on Civil and Political Rights. Even with such pronouncements, questions remain in regard to the nature, boundaries and scope of this right. Most importantly, does this pronounced right allow for selective military conscientious objection within the international human rights system? This article will focus on the view that the capacity for military conscientious objection in the international human rights system derives from the right to freedom of religion and conscience. The implication of the international human right of freedom of religion or belief is important for its application to selective conscientious objection. However, even if the Human Rights Committee desires to limit the application of military conscientious objection, a selective objector can arguably still make the case for upholding a claim based on the human right and the manner in which it has been interpreted by the Committee and other international bodies. While on the one hand the focus on the human right to freedom of religion or belief can possibly provide the basis for a selective conscientious objector, it removes the possibility for claims that do not involve a religion or belief. The importance however of freedom of religion or behef should force a reviewing body to properly consider and measure the claim of a selective objector, with a view towards considering whether they are confronted with the manifestation of a belief and whether the state is violating such a seminal human right.

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Articles
Information
Israel Law Review , Volume 36 , Special Issue: Refusals to Serve - Political Dissent in the Israel Defense Forces 3 , Fall 2002 , pp. 145 - 169
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2002

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References

1 Marcus, Emily, “Conscientious Objection as an Emerging Human Right,” (1998) 38Va. J. Int'l. L. 507Google Scholar; Major, Marie-France, “Conscientious Objection and International Law: A Human Right?”(1992) 24 CWRJIL 349Google Scholar; Lippman, Matthew, “Civil Resistance: The Dictates of Conscience and International Law Versus the American Judiciary,” (1990) 6 Fla. J. Int'l. L. 5Google Scholar; Weisbrodt, David, “The UN Commission on Human Rights confirms Conscientious Objection to military service as a human right” (1988) 35 NILJ 53Google Scholar; Wolff, R., “Conscientious Objection: Time for Recognition as a Fundamental Human Right” (1982) 6 ASILILJ 65Google Scholar; Schwelb, Egon, “The UN, The Council of Europe, and Human Rights: Some Observations” (1975) VIII (3) Revue de Droit de L'hommeGoogle Scholar. For an overview of state practice, see Moskos, Charles and Chambers, John Whiteclay, eds., The New Conscientious Objection: From Sacred to Secular Resistance, (New York, Oxford University Press, 1993)Google Scholar.

2 See discussion infra, at fn 30–32.

3 See, e.g., General Comment to Article 18, discussed infra, at fn. 66.

4 Concluding Observations of the Human Rights Committee, Kyrgyzstan, 24/07/2000 at para. 18, CCPR/CO/69/KGZ. The Committee criticized the state because the right to conscientious objection to military service is only for members of a registered religious organization whose teachings prohibit the use of arms.

5 See discussion infra, at fn. 29.

6 See discussion infra, at fn. 27.

7 See discussion infra, at fn. 72.

8 See discussion infra, at fn. 33.

9 The regional approaches are outlined in the High Commissioner's report, discussed infra. See also Decker, Christpoher and Fresa, Lucia, “The Status of Conscientious Objection Under Article 4 of the European Convention of Human Rights” (2001) 33 NYUJILP 379Google Scholar (discussing the right as developed within the Council of Europe); Hammer, Leonard, The International Human Right to Freedom of Conscience: Some Suggestions for its Development and Application (London, Ashgate, 2001)Google Scholar.

10 For a complete discussion regarding the background to this article, as well as the possible limitations to the article, see Tahzib, Bahiyyiah G., Freedom of Religion or Belief: Ensuring Effective International Legal Protection (The Netherlands, Kluwer, 1996)Google Scholar; Evans, Malcolm, Religious Liberty and International Law in Europe (Cambridge, Cambridge University Press, 1997)CrossRefGoogle Scholar; Hammer, supra n. 9, at chapter 3.

11 Of course, other treaties and sources address the right to freedom of religion or belief. For a complete discussion of these documents, as well as the emergence of the right within the international system, see Evans, ibid; Hammer, supra n. 9, at chapter 3.

12 The Article, as a whole, was adopted in both the Third Committee and the General Assembly by a unanimous vote.

13 For a complete discussion regarding the implication of a belief, and recognizing that a belief also can incorporate a conscientious belief, see Hammer, supra n. 9, at chapters 3–5.

14 Of course, external actions can be coerced to change without altering one's internal beliefs. A state might unduly limit the manifesting of a belief due to overriding national security interests. Indeed, coercive state tactics might even strengthen one's internal resolve. Such coercion of external actions however results in a violation to the forum externum of the right to freedom of conscience.

15 General Comment to Article 18 (48th session), 30/7/98, at para. 5.

16 Nowak, Manfred, UN Covenant on Civil and Political Rights: Commentary (Germany, NP Engel, 1993) 314Google Scholar; Sullivan, Donna J., “Advancing the Freedom of Religion or Belief Through the UN Declaration on the Elimination of Religious Intolerance and Discrimination,” (1988) 82 AJIL 487CrossRefGoogle Scholar.

17 Cumper, Peter, “Freedom of Thought Conscience and Religion” in Harris, David and Joseph, Sarah, eds. The ICCPR and UK Law (Oxford, Clarendon Press, 1995) 370Google Scholar citing to Sullivan, supra n. 16, at 494. Of course, advertising can be coercive as well. See e.g. 7805/77 Church of Scientology v. Sweden, 16 D&R 68 (1979) (Restrictions on wording of advert for an ‘E-meter’, arguably a religious item, was upheld due to commercial nature of transaction).

18 18187/91 H v. UK, 16 EHRR CD44 (1993).

19 7050/78 Arrowsmith v. UK, 3 EHRR 218 (1981) (hereinafter: Arrowsmith).

20 Such as the scattering of ashes over one's grave. See 8741/79 X v. The Federal Republic of Germany, 24 D&R 137 (1981).

21 Edge, Peter W., “Current Problems In Article 9 of The European Convention on Human Rights, Juridical Review” (1996) part I Juridical Review 42Google Scholar; Loschelder, Wolfgang, “The Non-fulfillment of Legally Imposed Obligations Because of Conflicting Decisions of Conscience – the Legal Situation in the Federal Republic of Germany” in Giuffre', Dott. A. ed. Conscientious Objection in the EC Countries (European Consortium for Church-State Research, Milan, 1992) 30Google Scholar; Marshall, William P., “The Religious Freedom Restoration Act: Establishment, Equal Protection, and Free Speech Concerns,” (1995) 56 Mont. L. Rev. 227Google Scholar (relying on this same point as a means of equating the ‘Free Exercise’ of conscience with religion); Childress, James L., “Appeals to Conscience,” (1979) 89 Ethics 315CrossRefGoogle Scholar.

22 McGoldrick, Dominic, The Human Rights Committee: Its Role in the Development of the International Covenant on Civil and Political Rights (Oxford, Clarendon Press, 1991)Google Scholar, noting that General Comment of Human Rights Committee is generally of a sharper nature since they do not focus on a particular state; Ramsey, Stephen D., “Supervising Implementation of the Covenants: the first ten years of the Human Rights Committee,” (1986) 80 Am. Soc'. Int'l. L. Proc. 413Google Scholar (presumption that General Comment are final word for interpreting International Covenant on Civil and Political Rights).

23 Similar to the drafters of the treaties, the Human Rights Committee did not define the term, so as to include all forms of religion and belief. See travaux preparatoires to Human Rights Committee's General Comment to Article 18, CCPR/C/SR.1162.

24 General Comment to Article 18 (48th session), 30/7/98, at para. 1.

25 Beddard, Ralph, Human Rights and Europe (Cambridge, Cambridge University Press, 1993) 114Google Scholar; Edge, supra n. 21, at 42; Vermeulen, B., “Scope and Limits of Conscientious Objection” in Council of Europe, Freedom of Conscience (Strasburg, Council of Europe Press, 1993) 84Google Scholar, noting that it is not the personal motivation, but the ‘objective characteristics of the relevant act’ which determine whether the act falls within the scope of the law.

26 See, e.g., Arrowmith, supra n. 19.

27 Edge, supra n. 21, at 42; Rimanque, Karel, “Freedom of Conscience and Minority Groups” in Council of Europe, Freedom of Conscience (Strasburg, Council of Europe Press, 1993) 157Google Scholar (distinction between manifestation and motivation is unfair and superfluous in light of derogation inherent in article which protects against arbitrary reliance on the right); Arrowmith, supra n. 19 (Opsahl for dissent) (requirement for conscience need not be ‘clearly manifesting a belief’ if action is based on a genuine belief which provides motivation for the action).

28 See discussion infra, at fn. 53.

29 CCPR/C/SR.1237.

30 See, e.g., Concluding Observations of the Human Rights Committee, Venezuela: 26/04/2001 at para. 26, CCPR/CO/71/VEN. The Committee notes, that there is no provision in Venezuelan law for conscientious objection to military service, which is legitimate pursuant to article 18 of the Covenant. The State party should see to it that individuals required to perform military service can plead conscientious objection and perform alternative service without discrimination.

31 See discussion infra, at fn. 72.

32 The Commission on Human Rights initially broached the issue under the agenda item Study of the Question of Young People all over the World for the Development of its Personality and Strengthening of its Respect for the Rights of Man and Fundamental Freedoms beginning with its 27th session in 1971. See E/CN.4/1068 (27th session)(1971). The Commission on Human Rights discussed military conscientious objection throughout the 1970's, requesting the Secretary General to issue semi-annual reports regarding the status of the right in various states. See, e.g., E/CN.4/1118/Add.l–3 (29th session) (1973); E/CN.4/1118/Con.l (30th session) (1974); E/CN.4/12–13 (36th session) (1976); E/CN.4/1408 (40th session) (1980).

33 E/CN.4/RES/1981/40.

34 Asbjorn Eide and Chama Mubanga-Chipoya, Conscientious Objection to Military Service E/CN.4/Sub.2/1983/30/Rev.l. See also E/CN.4/Sub.2/1982/24 (preliminary report). The Report also summarized the status of military conscientious objection in various countries. It recommended that, at a minimum, states recognize a general right to military conscientious objection to any form of warfare. Upholding the common good of society should not be a basis for a summary rejection of the right.

35 Ibid.

36 Ibid., at 8, referring to the Universal Declaration on Human Rights Article 3, International Covenant on Civil and Political Rights Article 6, ECHR Article 2, and the AmCHR Article 4.

37 Ibid., at 9.

38 Ibid., at 4–6.

39 Ibid., at 18–19.

40 Ibid., at 7–8.

41 The Secretary General received additional information in the mid-1980s. See E/CN.4/1985/25. The Secretary General's report reviewed the status of the right in some states and considered submissions by various NGOs. The Commission on Human Rights then proposed a resolution in 1985 but it was withdrawn. See E/CN.4/1985/L.33/Rev.1.

42 E/CN.4/1987/60.

43 E/CN.4/1987/SR.54/Add.1.

44 Res. 1987/46, supra n. 42, at the preamble. It also recommended that states adopt an alternative service system and impartial review tribunals. Ibid, at para. 3–4. The resolution also placed the matter officially on the agenda of the Commission on Human Rights under the title The role of youth in the promotion and protection of human rights, including the question of conscientious objection to military service.

45 Algeria, Bulgaria, Byelorussian Soviet Socialist Republic, China, Congo, Cyprus, Ethiopia, German Democratic Republic, India, Mexico, Nicaragua, Union of Soviet Socialist Republics, Venezuela, and Yugoslavia.

46 See, e.g., remarks by Yugoslavia, E/CN.4/1987/SR.54/Add.1.

47 See, e.g., remarks by the Congo, Algeria and Venezuela, E/CN.4/1987/SR.54/Add.1.

48 E/CN.4/1987/SR.54/Add.1. Cf. Nicaragua, which used the same reasoning to abstain from the voting.

49 E/CN.4/1989/30.

50 Resolution 1989/59.

51 Ibid., at para.1.

52 The resolution also expanded the notion of alternative service, noting that such service should be of a non-combatant or civilian character and not a punitive measure, and recommending alternative service and an impartial tribunal to review conscientious objector's claims. See Resolution 1989/56, at para. 3–5.

53 Resolution 1993/84.

54 Ibid., at the preamble. It did include a direct reference to the possibility that individuals may develop an in-service objection to military duty in Paragraph 2 and Paragraph 8 affirmed the importance of providing conscripts with information about the right to military conscientious objection.

55 E/CN.4/RES/1995/83.

56 E/CN.4/1995/SR.59.

57 Ibid., See reference to the Universal Declaration on Human Rights Article 14, regarding the right to asylum that is to serve as a basis for a military conscientious objection facing persecution.

See Paragraph 2 of the Resolution, improved in the 1993 version by removing the term ‘compulsory’, thereby extending the right to an in-service objection for voluntary military services. Paragraph 4 was a new addition urging states not to differentiate in their treatment of military conscientious objectors who maintain different forms of beliefs. The Commission on Human Rights also altered Paragraph 7 to incorporate an emerging practice among some states whereby the military conscientious objector's claim is accepted as ‘valid without inquiry’.

58 E/CN.4/RES/1998/77.

59 E/CN.4/RES/2000/34.

60 The Resolutions followed reports by the Secretary General, E/CN.4/1997/99 and E/CN.4/2000/55. Following submissions by a number of states, the Secretary General concluded that most countries recognize the right to military conscientious objection on the grounds of the right to freedom of religion or belief, although a minority of states either did not provide for the right, or limited the right solely to those whose objection was based on religious beliefs.

61 See particularly Article 18(3). For a complete discussion of the limitations, see Hammer, supra n. 9, at chapter 3.

62 Following a more detailed report by the Secretary General. E/CN.4/1997/99.

63 Ibid.. See also Marcus, supra n. 1, at 527–531, for a detailed discussion of the report.

64 The Council of Europe's review of the domestic state systems also noted a majority consensus among states providing for the right to military conscientious objection based on a review conducted in AS/JUR (36)4 and corrigenda; AS/JUR (38)3; AS/JUR (41)17.

65 General Comment to Article 18 (48th session), 30/7/98, at para. 11.

66 CCPE/C/SR.1237.

67 The General Comment also requested states to report on the right to alternative service and noted the desire for ensuring equality of such service with one's military counterparts.

68 E/CN.4/2002/WP.2 pursuant to the Commission on Human Rights' resolution, E/CN.4/RES/2000/34.

69 Ibid., at para. 8–15.

70 E/CN.4/2003/66.

71 Ibid., at para. 68.

72 CCPR/C/67/D/682/1996, at para. 9.3.

73 Ibid., at para. 9.5.

74 Concluding Observations of the Human Rights Committee, Ukraine: 12/11/2001, CCPR/CO/73/UKR.

75 See, e.g., Harmer-Dionne, Elizabeth, “Once a Peculiar People: Cognitive Dissonance and the Suppression of Mormon Polygamy as a Case Study Negating the Belief Action Distinction,” (1998) 50 Stan. L. Rev. 1295CrossRefGoogle Scholar (referring to Fetsinger's cognitive dissonance theory to demonstrate the changes that occurred to the Mormon religion following the US Supreme Court's decision outlawing polygamy).

76 Similar to the drafters of the treaties, the Human Rights Committee did not define the term, so as to include all forms of religion and belief. See travaux preparatoires to Human Rights Committee's General Comment to Article 18, CCPR/C/SR.1162.

77 Moskos and Chambers, supra n. 1; Hammer, supra n. 9, at chapter 6, discussing state practice and military conscientious objection.

78 The 1983 CHR Report referred to the possibility of selective conscientious objection. The Report noted that a selective conscientious objector determines that a form or method of military action breaches an internal moral that is equated with international law. Nonetheless, following analysis of the state reports on military conscientious objection, the Report concluded that selective conscientious objection is not an acknowledged form of the right.

79 Defense Legislation Amendment Act 1992, Division 2–5.

80 Siesby, Erik, “Conscientious Objection in Danish Law” in Giuffre', Dott. A. ed., Conscientious Objection in the EC Countries (European Consortium for Church-State Research, Milan, 1992)Google Scholar noting that some selective political objectors, such as refusing to serve under a capitalistic social order, would have a stricter burden of proof.

81 Vermeulen, B., “Conscientious Objection in Dutch Law” in Giuffre', Dott. A. ed., Conscientious Objection in the EC Countries (European Consortium for Church-State Research, Milan, 1992)Google Scholar noting objections to NATO, politically based – such as to capitalist systems, or nuclear weapons.

82 Article 18 provides for the freedom of religion or belief and is similar to the manifestation provision found in Article 18(1) of the International Covenant on Civil and Political Rights. See Hammer, supra n. 9, at chapter 3.

83 A/RES/33/165 (1978). See also discussion supra, at fn. 36.

84 See, e.g., 17419/90 Wingrove v. UK, 1996-V Rep. Judg. & Dec. 1937. See also Hammer, supra n. 9, at chapter 5.

85 Greenawalt, , “All or Nothing at all: The Defeat of Selective Conscientious Objection,” (1971) 31, SCR 67Google Scholar.

86 Capizzi, Jospeh E., “Selective Conscientious Objection in the US” (1996) 38 JCS 339Google Scholar.

87 See, e.g., Sicurella v. U.S., 348 U.S. 385 (1955); Kretchet v. U.S., 284 F.2d 561 (9th Cir, 1960).

88 Brinkhof v. Netherlands, CCPR/C/48/D/402/1990 (1993).