Conscientious objection to military service in international human rights law 9781137366078, 1137366079

Table of contents :
Cover......Page 1
Half-Title......Page 2
Title......Page 4
Copyright......Page 5
Contents......Page 6
Acknowledgments......Page 8
Abbreviations......Page 10
Introduction......Page 12
Part I Conscience, Freedom of Conscience, and Conscientious Objection to Military Service......Page 16
1 Conscience and Freedom of Conscience......Page 18
2 Conscientious Objection to Military Service......Page 28
3 Categories of Objectors to Military Service......Page 38
Part II Conscientious Objection to Military Service as a Human Right......Page 52
4 International Level: The United Nations Human Rights System......Page 54
5 Regional Level: The European and the Inter-American Human Rights Systems......Page 106
Conclusion......Page 168
List of Cases......Page 172
List of Treaties and Other International Instruments......Page 180
List of International Official Documents......Page 184
Notes......Page 190
Bibliography......Page 262
Index......Page 280

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Conscientious Objection to Military Service in International Human Rights Law

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Conscientious Objection to Military Service in International Human Rights Law Özgür Heval Çınar

CONSCIENTIOUS OBJECTION TO MILITARY SERVICE IN INTERNATIONAL HUMAN RIGHTS LAW

Copyright © Özgür Heval Çınar, 2013. All rights reserved. First published in 2013 by PALGRAVE MACMILLAN® in the United States— a division of St. Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN: 978–1–137–36607–8 Library of Congress Cataloging-in-Publication Data is available from the Library of Congress. A catalogue record of the book is available from the British Library. Design by Newgen Knowledge Works (P) Ltd., Chennai, India. First edition: December 2013 10 9 8 7 6 5 4 3 2 1

Contents

Acknowledgments

vii

Abbreviations

ix

Introduction

1

Part I Conscience, Freedom of Conscience, and Conscientious Objection to Military Service

5

1

Conscience and Freedom of Conscience

7

2 Conscientious Objection to Military Service

17

3 Categories of Objectors to Military Service

27

Part II Conscientious Objection to Military Service as a Human Right

41

4

International Level: The United Nations Human Rights System

43

5

Regional Level: The European and the Inter-American Human Rights Systems

95

Conclusion

157

List of Cases

161

List of Treaties and Other International Instruments

169

List of International Official Documents

173

Notes

179

Bibliography

251

Index

269

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Acknowledgments

T

his book is based on the main part of my doctorate thesis. Therefore, I should like to take this opportunity to thank everyone who has helped in its preparation. In particular, I would like to thank my esteemed supervisors, Prof. Kevin Boyle, Prof. Sabine Michalowski, and Prof. Sir Nigel Rodley. I also extend my thanks to Prof. Franç oise Hampson, Prof. Geoff Gilbert, Dr. Clara Sandoval, Prof. Philip Leach, and Ms. Lorna McGregor for expressing their opinions and offering suggestions. I dedicate this book to my wife, without whose constant support it would not have been possible to complete this book. I am also indebted to my family for their faith in me and their unwavering support. Finally, my warmest personal thanks are due to Ms. Lorna Trevelyan, Mr. Derek Brett, Mr. Fehmi Hanoǧ lu, Mr. Andrew Penny, Prof. Cynthia Cockburn, Dr. Jeroen Temperman, Mr. Howard Clark, Mr. Friedhelm Schneider, Ms. Sara Doskow, Dr. Farideh Koohi-Kamali, Ms. Tamsine O’Riordan and South East European Studies at Oxford (Seesox), as well as to all those others who offered valuable assistance and encouragement but are not mentioned here.

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Abbreviations

AD AfrCHR AmrCHR CETP

CFREU CHR CoE Eur. Comm’n HR Council CSCE Dec. Doc. ECHR ECtHR ECOSOC ETS EU European Committee GA GC GAOR Handbook

Anno Domini African Charter on Human and Peoples’ Rights American Convention on Human Rights Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights Charter of Fundamental Rights of the European Union Commission on Human Rights Council of Europe European Commission of Human Rights Human Rights Council Conference on Security and Co-operation in Europe Decision Document European Convention on Human Rights European Court of Human Rights Chamber Economic and Social Council European Treaty Series European Union European Committee of Social Rights [UN] General Assembly Grand Chamber Official Records of the General Assembly Handbook on Procedures and Criteria for Determining Refugee Status

x

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Abbreviations

HRC IAT ICCPR Inter-American Commission Inter-American Court OAS OHCHR OJ OSCE P(p) PACE UDHR UK UN UNHCR UNTS UPR USA USSR Working Group

Human Rights Committee Immigration Appeal Tribunal International Covenant on Civil and Political Rights Inter-American Commission on Human Rights Inter-American Court of Human Rights Organization of American States Office of the United Nations High Commissioner for Human Rights Official Journal Organisation for Security and Cooperation in Europe Page(s) Parliamentary Assembly of the Council of Europe Universal Declaration of Human Rights United Kingdom United Nations United Nations High Commissioner for Refugees United Nations Treaty Series Universal Periodic Review United States of America Union of Soviet Socialist Republics UN Working Group on Arbitrary Detention

Introduction

C

onscientious objection to military service is a means of resisting war and military service for reasons of conscience based on profound religious, ethical, moral, philosophical, humanitarian, or similar convictions. Conscientious objection generally concerns the exemption of people from fulfilling legal obligations that would necessitate a violation of their conscience, religion, or belief. The phenomenon of conscientious objection appears in diverse forms and covers a wide variety of societal issues from nonpayment of tax for military expenses to the performance of abortions. However, conscientious objection is more commonly associated with refusal to perform military service. Conscientious objection in the military context, according to Moskos and Chambers, leading scholars on the subject of conscientious objection to military service, is a fundamental part of an individual’s relationship with the State: it calls into question the obligation to defend the nation, which is considered to be one of the most important duties of the citizen.1 When conscientious objectors refuse to perform such a duty they, in fact, experience a conf lict in their relationship with the State, a conf lict between the beliefs/conscience of the objector and the duties laid down in positive law. 2 By making a declaration of conscientious objection, the objector consciously avoids performing obligations in the name of a superior command originating from conscience.3 Conscientious objection also exposes the limits of what a state can demand of its citizens where that demand may oppose individual conscience. This situation leads to the dilemma of whether a state can intentionally violate an individual’s conscience, and has attracted considerable controversy.4 It has been examined from historical, sociological, and political perspectives, as well as from an activist view point.5 This subject has also excited interest in international human rights law.6 Before outlining the content of the chapters it will be useful to clarify terminology. “Compulsory military service” may be defined as

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the situation where states recruit citizens for the military machine by legal obligation. The use of the word “conscription” indicates that military service is compulsory.7 The term “military service,” as used in this book, means “armed military service”—a term not to be confused with “unarmed military service,” which a state can provide as an alternative to conscription. This book is composed of five chapters, excluding the introduction and conclusion. Part I, is divided into three chapters of which the first chapter explores the concept of conscience with a view to understanding the meaning and potential scope of the right to conscientious objection from a legal perspective. As the right to conscientious objection derives from freedom of conscience, it is necessary for the origins and development of the concept of conscience itself to be well understood. A thorough grasp of the concept of conscience and its development will ensure a proper interpretation of the international documents that safeguard freedom of conscience in the present day. Moreover, the first chapter will give an idea of how the concept of conscience should be interpreted in countries that do not recognize the right to conscientious objection and yet protect freedom of conscience in their national law. The goal here is not to provide a definitive history of conscience but rather to show the gradual acceptance of conscience as an independent belief system, separate from religion. The evolution of the concept of conscientious objection will be expounded in the second chapter. In the light of the first chapter, this chapter will show that the secularization of conscience has played an important role in the concept of conscientious objection. In fact, the concept of conscientious objection is presently recognized by international human rights mechanisms—except the Inter-American mechanisms—as well as by those countries possessing national laws with both a religious and nonreligious dimension. In the event that the right to conscientious objection will be accepted in the future by countries that do not recognize the right to conscientious objection, an understanding of the development of the concept will aid in deciding who, exactly, should be covered by such a right. An attempt is to be made in the third chapter to define various types of conscientious objectors in the light of the evolution of conscientious objection. A legal analysis of different forms of conscientious objection will be conducted; current debates on how these different forms should be interpreted at national and international levels and whether they are officially recognized will also be addressed.

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3

Part II investigates the right to conscientious objection in international human rights law as a legitimate exercise of freedom of thought, conscience, and religion. This part will be divided into two chapters dealing with the content and scope of the right to conscientious objection at both the international and regional level. United Nations mechanisms will be examined at the international level in chapter 4; at the regional level, the European and Inter-American mechanisms will be analyzed in chapter 5. Regional mechanisms in Africa, Asia-Pacific, and Arab countries are not studied. This is because there are no norm-setting mechanisms or implementation procedures in the Arab and Asia-Pacific mechanisms. 8 While such procedures do exist in the African human rights system, the right to conscientious objection is not found in the travaux préparatoires of the African Charter on Human and Peoples’ Rights, nor in the caselaw of those bodies interpreting the Charter. The African mechanism is also therefore excluded from study in this book.9 Part II examines the travaux préparatoires of Article 18 of the Universal Declaration of Human Rights (UDHR) and other key international and regional treaties.10 These include Article 18 of the International Covenant on Civil and Political Rights (ICCPR), Article 9 of the European Convention on Human Rights (ECHR) and Article 12 of the American Convention on Human Rights (AmrCHR) all of which guarantee the right to freedom of thought, conscience, and religion. When it is considered that the right to conscientious objection is directly linked to the freedom of conscience in particular, a more profound examination of this freedom will be of great significance. A close look at the travaux préparatoires of the human rights documents that safeguard this freedom is essential as regards understanding whether the right to conscientious objection has been discussed within the framework of freedom of conscience. In other words, this study is vital for understanding how the concept of freedom of conscience evolved in relation to the right to conscientious objection. The travaux préparatoires can also serve to understand and interpret the meaning of the relevant provisions of the human rights documents. The purpose of such examination is to see what the States involved in drafting these instruments understand by the term “freedom of thought, conscience, and religion,” particularly “freedom of conscience.” In relation to conscientious objection, this analysis will also answer the question of whether conscientious objectors, possessing religious or nonreligious beliefs, are protected by this freedom.

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Notably, in the past, key studies have generally tended to examine the origins of the right to conscientious objection within the framework of the “prohibition of slavery and forced labour.”11 This is understandable, as military service and alternative service are listed as exceptions under such provisions in international law treaties. However, in this study the origins of the right to conscientious objection are examined within both the framework of the “prohibition of slavery and forced labour,” as well as “freedom of thought, conscience, and religion.” The right to conscientious objection is directly linked to freedom of thought, conscience, and religion; therefore, a more profound examination of this freedom as separate from the prohibition of slavery and forced labor will be of greatly increased significance. The study is distinctive in respect of a further feature concerning the range of documents examined: in addition to covering the UDHR and UN, European and Inter-American key treaties, and their mechanisms, an examination of other European human rights documents is also included: the European Social Charter, the Charter of Fundamental Rights of the European Union, and the Document of the Copenhagen Meeting. Taken together, the documents make important contributions to human rights law in Europe. Futhermore, probing into relevant case-law from international and regional mechanisms will aid in assessing the present scope of the right to conscientious objection within the term “freedom of thought, conscience, and religion” and, to the same end, the right to conscientious objection in nonjudicial international and regional mechanisms will also be scrutinized.12 In the fourth chapter there will also be a discussion of whether a conscientious objector from a country that does not recognize the right to conscientious objection can seek asylum in another country. This will require an assessment of whether the right to conscientious objection is accepted as grounds for asylum in international law. It will necessitate a close look at the United Nations High Commissioner for Refugees (UNHCR) handbook on the determination of refugee status and other refugee conventions. This will be followed by an examination of whether states’ attitudes to the right to conscientious objection are changing in asylum cases. Finally, the conclusion of this book summarizes the current international standards on the right to conscientious objection to military service.

PART I

Conscience, Freedom of Conscience, and Conscientious Objection to Military Service

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he essence of the right to conscientious objection is the concept of conscience itself. Thus, in order to comprehend the scope and meaning of the right to conscientious objection, it is first necessary to undertake a detailed examination of the origins and development of the concept of conscience and of freedom of conscience in chapter 1. Such an analysis will also ensure a better understanding of the subsequent legal analysis of the right to conscientious objection. The development of conscientious objection in parallel with the aforementioned evaluation of the concept of conscience and freedom of conscience will also be examined in chapter 2 . In this respect, the evolution of the concept of conscientious objection will become clear within this study. Finally, in the light of the evolution of the concept of conscientious objection, chapter 3 will examine how various types of conscientious objectors have arisen. It will describe the different categories into which conscientious objectors can be divided, explain the differences between these categories, and investigate how these differences are interpreted at national and international levels.

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CHAPTER 1

Conscience and Freedom of Conscience

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he word “conscience” derives from the Latin word “conscientia .” In its linguistic origins, the term “conscience” signified shared (con) knowledge (science).1 According to the Longman Contemporary English Dictionary, the conscience is “the part of your mind that tells you whether what you are doing is morally right or wrong.” 2 Eide and Mubanya-Chipoya, in their report to the United Nations, interpret the meaning of conscience thus: “genuine ethical convictions, which may be of religious or humanist inspiration, and supported by a variety of sources.”3 In the travaux pr é paratoires of the International Covenant on Civil and Political Rights (ICCPR), delegates took account of the fact that conscience can be attributed to both philosophical and scientific concepts that, in themselves, amount to belief, in contrast to religious ideas that are based on faith. Thus, the drafters accepted equality between religioun and conscience deriving it from an individual’s personal moral canons founded in his/her distinction of right from wrong.4 It is evident from these interpretations that a central role is assigned to the individual in determining the substance of one’s conscience, allowing for the fact that any understanding of the concepts of good and bad varies from person to person and even from incident to incident. In this respect, there are several fundamental factors that affect a person’s conscience such as religious, moral, ethical, philosophical, humanitarian, or similar convictions.5

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A Brief History of the Recognition of the Concept of Conscience and Freedom of Conscience The subjective and secular character of the concept of conscience is a result of its evolution through a historical timeframe. A retrospective over “three periods”6 will explain how conscience and freedom of conscience have been gradually disentangled from a religious framework to become more secular and to be recognized as independent categories of freedom. The point has now been reached whereby similarity in the wording of relevant articles in international and regional human rights documents safeguards both freedom of conscience and freedom of religion, thereby demonstrating the strong relationship between these two independent freedoms.7 The First Period: Up Until the End of the Middle Ages The origins of the current individual, subjective, and secular aspect of freedom of conscience can be found in the historical acceptance of minority religious groups. 8 This chapter will therefore address the relationship between the concepts of religious tolerance and freedom of conscience both before and after the acceptance of Christianity as a state religion.9 Special attention will be paid to their development in Europe because the majority of the struggles for freedom of religion and conscience have taken place in Europe.10 To understand the role of religious tolerance before the acceptance of Christianity as a state religion it will be instructive to look at the thirdcentury works of Tertullian, a Christian scholar. Here, one encounters texts propounding the idea that no one should be forced to hold any particular belief. Tertullian presents the case for freedom of belief, ergo, the freedom to believe in Christ as a precondition of Christianity. He claims that in this religion people are advised to love one another, adding that belief in Christianity cannot be attained by force.11 While, in this period, religious tolerance was emphasized, the concept of conscience was expressed solely within a religious framework.12 Having suffered constant persecution in the early days, Christians were initially in favor of religious tolerance. In the Edict of Milan, proclaimed by the Roman Emperor Constantine in 313 ad, the emperor called for tolerance to be shown to “the Christian Church and all other religions.”13 However, after the adoption of Christianity as the state religion under Constantine, Christianity spread rapidly over Europe and once

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the Christian Church was established, despite being in total contradiction to “the teachings of Christ,”14 persecution of people holding other beliefs commenced.15 Persecution increased under subsequent emperors, the Church eventually becoming a sort of department of religious affairs in an imperial, theocratic church-state.16 During the Middle Ages there was constant friction between church and state as regards their relative powers, and it is apparent that the Church was determined to limit the authority of the state in religious affairs.17 Concurrently, in countries outside Europe where Christianity was not predominant, there was little or no tolerance shown to minority religious groups. In Japan, for instance, after the acceptance of Buddhism as the state religion in the sixth century, followers of other religions were treated harshly.18 Overall, after the acceptance of Christianity as the state religion in Europe, the inf luence of the Church grew to the extent that, at least until the twelveth century, the power of the Church restricted the authority of the state. Consequently, intolerance of non-Christian societies became increasingly prevalent. The widespread inf luence of the Church meant that the concept of conscience was defined solely within a religious framework. Nevertheless, in the twelveth century Abelard, a French scholar, stated that it was always wrong for a person to act against his/her conscience.19 In the thirteenth century, Thomas Aquinas, Italian priest and theologian, said that people did not have to comply with the orders of a lower authority when it contradicted that of the supreme power, God. 20 These commentators believed that God created man, and therefore gave man a sense of good and evil. 21 Being founded on Graeco-Roman and Christian traditions, this idea of conscience admits the existence of a supernatural force. In the Bible’s Epistle to the Romans (2:15) it is said that God wrote his law in our hearts, to which our conscience bears witness, meaning that conscience as related to an individual’s sense of good and evil was based on religious conviction. 22 It is apparent from the above dictum that in examining the concept of conscience within the context of theology, scholars have emphasized that the concept should not be predetermined by institutions such as the Church or the state. In fact, at that time, Abelard and Aquinas were considered social rebels. 23 In conclusion, the word “conscience” itself gained currency during this period, albeit restricted to the theological context. Thinkers commonly maintained that “moral actions” originate from the “objective

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law of God”; not until the beginning of the rise of humanism was there any change in this tendency. 24 The Second Period: From the Renaissance and Reformation to the Nineteenth Century With the Renaissance period (the fifteenth and sixteenth centuries) views on morality began to change. During this period, thinkers such as Erasmus focused on the humanitarian aspects of religion thereby ensuring that future scholars would evaluate the concept of conscience outside the theological context. However, while moral views began to undergo a change, the concept of conscience was still considered within a religious framework. 25 From the beginning of the Reformation (the sixteenth century), the authority of the Church began to be questioned. In particular, the “mediator function of priests and sacraments” came to be somewhat rejected. 26 However, while it became accepted that a person’s conscience formed part of a personal morality, conscience itself was still not seen to be separate from religion. 27 At that time, religious belief, seen as the work of God and the conscience, was bound up with this work. 28 Overall, during the Reformation it was believed that the individual— rather than the Church—was free to decide what was right and wrong and to define religious belief. The most important development as regards human rights at this time was limited to the recognition of religious liberty. 29 For instance, the decision was taken at the Union of Utrecht of 1579 that no one would be subjected to investigation on account of their religious beliefs.30 Kamen sees the questioning of inviolable religious doctrine by the ruling class as the fundamental impetus for the recognition of religious liberty. The change occurred for economic reasons, religious intolerance constituting an enormous obstruction to the prosperity of the state. What emerged was the imperative that every individual should contribute to the economy.31 For this reason England and the Netherlands demonstrated tolerance toward Jewish minorities, thus ensuring their contribution to the state economy.32 During the seventeenth and eighteenth centuries, as the idea of tolerance began to spread, individual beliefs also began to be accepted. In this context the “Treaty of Westphalia of 1648,”33 agreed at the end of Europe’s Thirty Years War (1618–1648) between Catholics and

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Protestants, was an important step toward religious liberty: Calvinist and Lutheran Sects of Protestantism, as well as Catholics, were recognized on an international level.34 However, recognition was restricted to Catholic, Calvinist, and Lutheran sects. Since the existence of other sects was dismissed, it cannot be said that the treaty contributed toward creating an extensive pluralist system. Despite the limitation, there are those who believe the treaty brought about the beginning of the secularization of international politics.35 With the granting of freedom of religion to religious minorities via the Treaty of Westphalia and the advent of the Reformation, the Church’s authority came to be increasingly questioned, particularly in relation to its dominant role within the state, leading to the recognition of the idea of personal freedom and individual conscience.36 In consequence, the secularization of freedom of conscience dawned. Philosophers such as Francis Bacon, Johannes Althusius, and Hugo Grotius, in particular, wrote that they no longer considered conscience and freedom of conscience to be subject to the objective law of God; rather, they understood these notions to be autonomous. 37 The view was further developed by other philosophers such as David Hume, James Harrington, John Locke, Voltaire, Pierre Bayle, and Jean Bodin. 38 In England in 1689, Locke wrote an important letter entitled “A Letter Concerning Toleration” in which he points out the necessity of equal state protection for all, irrespective of religious beliefs.39 Here, Locke specified the following regarding conscience: “Liberty of conscience is every man’s natural right.”40 The importance of Locke’s writings have been highlighted by Krishnaswami, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, who noted that they constitute the first framing of the notion that individuals and groups have the right to claim freedom of thought, conscience, and religion.41 In this period, freedom of conscience was, for the first time, seen as a natural right.42 Locke, furthermore, made a distinction between the freedom to maintain or to change religion or belief and the freedom to manifest religion or belief, emphasizing that the former should not be restrained while saying that the latter could be restricted by the state.43 This distinction, as will be seen in subsequent chapters, relates to the forum internum and forum externum aspects of freedom of conscience.

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It can be seen that the aim of scholars in the Age of Enlightenment (the seventeenth and eighteenth centuries) was to establish the concept of individual freedoms and to remove the concept of conscience from its foundation in religious beliefs.44 The inf luence of Enlightenment thinkers such as Locke in political-legal life was ref lected in particular in England in the “Toleration Act of 1698,”45 which guaranteed that nonconformist Protestants, a minority religious group, would no longer be prosecuted and convicted.46 Developments regarding conscience and freedom of conscience continued into the eighteenth century. For instance, Kant, a prominent Enlightenment scholar, looked at the origins of conscience. According to Kant, following one’s conscience is a personal duty: conscience recognizes a distinction between good and evil, and therefore each person has to seek out his/her own conscience.47 Developments were, moreover, ref lected in the French and American revolutions of the eighteenth century, after which individual freedoms and freedom of belief began to be protected more effectively.48 For instance, the French Revolution (1789) ensured the same right to worship for Calvinists and Jews as already existed for Catholics.49 Its Article 10 of the “Declaration of the Rights of Man and of the Citizen”50 guaranteed freedom of expression of religious views stating that: “No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.”51 In the international treaties of the period, occasional references were made to conscience, as opposed to religion, perhaps indicating the emergence of a broadening concept of conscience. For instance, in Article 5 of the 1783 Treaty of Commerce and Amity between the United States of America (USA) and Sweden the following is asserted: “There shall be granted a full, perfect, and entire liberty of conscience to the inhabitants and subjects of each party, and no person shall be molested on account of his worship, provided he submits, so far as regards the public demonstration of it, to the laws of the country.”52 Similar language is to be found in the treaty between the USA and Prussia signed in 1785.53 The likelihood is that the use of the word “conscience,” instead of the word religion, in these treaties was due to the separation of Church and State, particularly in the USA.54 As a result, with the development of individual freedoms, the individual was given a central role, no longer being obliged to follow religious dictates unthinkingly.55

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The Third Period: From the Nineteenth Century to the Present Although the term “conscience” was not widely used in international documents, treaties of the eighteenth and nineteenth centuries contained provisions that protected religious minorities and nonreligious minorities, as well as recognizing rights for their members.56 Two significant examples lie in the Congress of Vienna of 1814 and the Treaty of Vienna of 181557 that ended the Napoleonic wars and redrew the map of Europe, also providing for the protection of all minorities regardless of religion or nationality.58 Another step forward is evidenced by the Treaty of Berlin of 1878 that envisaged the recognition of religious freedom within signatory States.59 The treaty was framed to prevent discrimination on religious grounds in employment, civil, and political rights as well as to guarantee freedom of worship.60 It can be seen from these treaties that tolerance began to be exercised toward nonreligious minorities in addition to religious minority groups. The treaties granted civil rights and liberties, including freedom of religion, to everyone equally without discrimination. In addition, the idea of freedom of conscience outside the theological framework continued to evolve alongside the beginnings of international protection for religious and other minority beliefs.61 A crucial factor in the emergence of conscience as a moral standard independent of religion was the movement for the abolition of slavery, at the end of the eighteenth and beginning of the nineteenth centuries.62 According to the leading scholars, Richards and Hammer, the Abolitionists believed that slavery violated the intrinsic dignity of the human being. Conscience was seen by them to be the most fundamental value of the human being and they opposed slavery based on grounds of conscience. The case the Abolitionists put forward shows that it was possible for individuals to develop a moral stand based on their personal inherent values. Those who opposed slavery thus challenged the dogma that conscience should be understood as being founded on solely religious grounds, and highlighted that a belief did not necessarily have to originate from a religious source. Rather, moral and social inf luences on a person’s attitude to events could be the foundation.63 It can be observed in the movements opposing slavery that the individual began to advocate that which he/she considered to be right, even when it involved committing acts of individual disobedience toward the institutions of Church and State. In the nineteenth century

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Thoreau, who is considered the ideological father of civil disobedience, believed that the individual was superior to the state because of his/her conscience: It is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right. It is truly enough said that a corporation has no conscience; but a corporation of conscientious men is a corporation with a conscience . . . There will never be a free and enlightened State, until the State comes to recognise the individual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly. 64

Treaties with the aim of protecting minority religious groups, having first sprung up in Europe, continued to be framed into the nineteenth and twentieth centuries at a wider international level.65 After the First World War, Article 22(5) of the League of Nations’ Mandate System assigned Member States the responsibility of ensuring “conditions which will guarantee freedom of conscience and religion”66 for their protectorate areas.67 Although the treaties and mandates were oriented toward the protection of conscience, the particular rights protected were included in the collective rather than in the individual rights group.68 Overall, the twentieth and twenty-first centuries saw a much stronger emphasis on the secular views of conscience, especially in the period following Second World War in which there have been clear developments in the idea of conscience as individual belief.69 Conscience has been described by scholars and legal experts as an individual’s final authority, while it has also become generally accepted that conscience is personal and subjective.70 How these views came about will be examined in part II. Concluding Remarks Western Europe took a long time to accept the need for freedom of conscience. As evidenced by the aforementioned changes in attitudes during the Renaissance, Reformation, and Enlightenment periods, the separation of Church and State eventually led to the word “conscience” being conveyed without its former religious connotation. The idea of conscience has taken on a secular significance so that it is now no longer evaluated solely within a religious framework but also from a secular viewpoint.

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As a result of past struggles waged against State and Church, freedom of conscience is now recognized in international and domestic law as an individual freedom.71 In the next chapter, the historical and philosophical origins of the concept of conscientious objection will be examined so that its link with the evolution of the concept of conscience and freedom of conscience, as expounded above, will be better understood.

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CHAPTER 2

Conscientious Objection to Military Service

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onscientious objection has travelled a long way since the first known conscientious objector was executed in the third century because of his religious pacifism; today, international and national mechanisms have begun to accept conscientious objection for religious, ethical, moral, philosophical, humanitarian, or similar motives; that is to say, on nonreligious as well as solely religious grounds.1 Conscientious Objection to Military Service Based on Religious Beliefs In 295 ad, when Roman soldiers arrived in Numidia (today’s Algeria) with the object of recruiting males for the Roman army, Maximilianus, the first recorded conscientious objector, said he would not become a soldier. His grounds for refusal were that he was a Christian and that in the teachings of Christ, violence was condemned; Maximilianus was consequently executed. 2 Nevertheless, he entered the history books as the first known conscientious objector. Many Christians were later put to death for refusing to join the military.3 In fact, early Christians from 29 ad until the Emperor Constantine announced his conversion to Christianity in 312 ad,4 had adhered strictly to Jesus’s “Sermon on the Mount”5 and his teaching “if someone strikes you on the right cheek, turn to him the other also.”6 Given that they were therefore strictly opposed to killing, Maximilianus may not have been the first to be executed for opposing the commands of Rome

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in refusing to join the army. It is generally accepted that the concept of pacifism had been formulated in the first and second centuries.7 Tertullian formulated significant arguments supporting pacifism at that time. In his works “Concerning Idolatry”8 and “Concerning the Soldier’s Garland,” 9 Tertullian made clear the fact that Christianity completely forbade Christians to serve in the Roman army, it being a sin for Christians to kill.10 With the conversion of Constantine in 312 ad, Christianity started to gain legal status in the Roman Empire and one can see here the beginning of a new period beginning with the Council of Arles of 314 ad, which issued a statement allowing Christians to join the army of their own free will.11 The relationship between Christianity and pacifism changed when Christianity became the official religion of the empire. In fact, following the Roman Empire’s adoption of Christianity as the official and obligatory religion in 380 ad, the Roman Catholic Church introduced the “Just War” doctrine.12 This doctrine was preached during the fifth century by Saint Augustine, a Christan theologian, who maintained that war could be justified as a last resort when directed against sinners.13 Notably, the Just War doctrine was used to legitimize the Crusades (1095–1270) launched against Muslims.14 Contemporaneously, and in contrast, Saint Paulinas, Bishop of Nola, as well as some other Christian individuals called for soldiers of the Christian faith to quit the army.15 Despite developing close relationships with circles of political power, between 1520 and 1660 the Catholic Church grew weak as protestant reform movements gathered strength, leading to the establishment of various sects and currents. Martin Luther, recognized as the founder of Protestantism, stressed that Christians should avoid using force.16 Despite Luther’s views, most Protestant sects accepted the Just War doctrine as the Catholic Church had done before.17 However, certain minority Protestant groups refused to accept the Just War doctrine, saying that force could not be justified in any circumstances. These groups, who called themselves “defenceless Christians,” based their position on the sixth of the Ten Commandments: “Thou shalt not kill .”18 Moreover, they opposed the political authorities, and they were persecuted for their spiritual life by the established Church. Exemplars of such sects are the Anabaptists19 and the Quakers. 20 Anabaptists and Quakers left a rich legacy to pacifism in refusing to join the army and in affirming that the use of force conf licted with the teachings of Jesus. 21

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Another of the most prominent groups refusing to do military service is the Jehovah’s Witnesses. Founded by Charles Taze Russell in the USA in the 1870s, the sect ensured that groups of conscientious objectors made contact with urban and proletarian elements. In fact, Jehovah’s Witnesses are not pacifists, for they intend to fight at Armageddon. However, they believe that governments are the work of Satan. As a result, they reject all relations with the state, including joining the army, saluting a f lag, or participation in government, secure in the belief that Christians must remain impartial in worldly conf licts. 22 The defiance exhibited by these radical Protestant groups toward Church and State succeeded in gaining rights of exemption from military service in certain countries with a Protestant tradition. These countries adopted their own law allowing radical Protestant groups to live in accordance with their nonviolent convictions. As early as 1549 and 1580, Holland exempted such groups from conscription. In the early nineteenth century Napoleon granted exemption from compulsory military service to Anabaptists. 23 The exemption granted to these Protestant groups meant an acceptance of freedom of religion in a number of countries. 24 What needs to be noted is that these groups advocated the idea that the individual could choose right and wrong in his/her relations with God, without reference to the Church. Although conscience was still not evaluated separately from religious belief, conscience was acknowledged as a part of personal morality. 25 Moskos and Chambers state that with the emigration of numerous “defenceless Christians” (Quakers, Anabaptists, and German Pietists) to the English American colonies, modern conscientious objection began, leading to these colonies gradually formulating laws on conscientious objection at least for the abovementioned groups. 26 For instance, in 1775, a year before the United States Declaration of Independence, the Continental Congress stated: “there are some people who from Religious Principles cannot bear Arms in any case.” 27 It then passed a motion stating: “[t]he Congress intended no violence to their Consciences,” 28 offering the following alternative that they: “do all other services to their oppressed country, which they can do consistently with their Religious Principles.” 29 In refusing to perform military service and opposing the Just War doctrine, Protestant reform movements made a significant contribution to the emergence of the first organized conscientious objection movement. One could suggest that conscientious objection in the West has its origins in the pacifist beliefs that were the essence of Christianity.30

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In support of this argument Brock points out that objection to participation in war originates in Christianity thus: There is no known instance of conscientious objection to participation in war or of the advocacy of such objection before the Christian era, and until roughly the last one hundred and fifty years pacifism in the West was confined to those who stood inside the Christian tradition. It is not found, at least in explicit form, in any non-Christian Asian or African civilization until very recent times, or in the early and indigenous American civilizations, or in primitive cultures.31

Brock and other scholars claim that the concept of conscientious objection first emerged with the appearance of Christianity. However, while pacifism developed rapidly alongside the teachings of Jesus, there are scholars who argue that certain aspects of pacifism existed in preChristian religions, too.32 For instance, some groups of Buddhists, Hindus, and Jains are opposed to violence in all circumstances.33 Mahatma Gandhi, a Hindu thinker, believed that a person “truly becomes a man” only when he reaches the perfect stage of nonviolence.34 In this belief, Gandhi consistently instructed his followers not to harm one hair on the head of one Englishman in the fight for Indian independence.35 Gandhi even considered military service to be a symptom of disease. Furthermore, he emphasized that conscientious objection, like patriotism, was ineffective and that the state and society needed to be reshaped within an entirely nonviolent framework.36 Other Hindu thinkers also share these beliefs.37 Kurlansky contends that “ahimsa ” (nonviolence) is not, however, an unshakable principle, adding that violence is permissible in Hinduism, citing the warlike Hindu god Indra. Furthermore, Kurlansky points out that violence is interpreted in different ways in Buddhism, citing Japanese Buddhists who do not shrink from being combatants.38 The conclusion reached is that both pacifist and nonpacifist elements can be found in pre-Christian Eastern religions. Likewise, Judaism and Islam may seem ambiguous in that they teach “thou shalt not kill ” while, at the same time, allowing force to be used as a last resort. On examining the Torah, it can be seen that “Thou shalt not kill ” is the sixth of Moses’s ten commandments. However, there are many passages in the Torah concerning warfare and its justification.39 In Islam, although there is a definite ban on killing, such as “no one but Allah may take the life He has bestowed,”40 legitimate self-defence and the concept of war for the purpose of spreading Islam is approved

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of:41 the fact that the Prophet Muhammad himself took part in nine wars for Islam is a prime example.42 In conclusion, all religions contain the message “do not kill.” However, Cobb writes, “[i]f we are honest, we must admit that Islam, Christianity, Judaism, Buddhism, Hinduism, Sikhism—all religions—promote violence just as surely as they promote peace and justice.”43 In particular, as for the adherents of the three “semavi”44 religions, the culture of punishing the wrongdoer, the belief in hell, and the belief pertaining to the destruction of those with different beliefs has constituted ideological support for war, legitimizing the use of force in certain circumstances.45 Nevertheless, numerous researchers continue to acknowledge that religious pacifism has been most fully demonstrated in certain elements of Christianity, despite the Just War doctrine.46 Conscientious Objection to Military Service Based on Nonreligious Beliefs The system of modern conscription developed in parallel with the concept of the nation-state, which was born after the Frech Revolution in 1789. Conscription took on a new meaning in military history. In the century following the Revolution, military service became a symbolic part of citizenship for French men. In addition to protecting the nation, conscription was also seen as important to the process of nationbuilding. Being a soldier had previously been a duty that belonged only to noblemen; after the Revolution the duty was extended to all male citizens. This situation led to the creation of the people’s army (a mass army), militarism no longer being seen as a class monopoly.47 The system of modern conscription signified a restructuring of the democratic state and a redrawing of citizenship duties in France and in other countries affected by the revolution.48 Together with the redesigning of the state to include democratic values, subjects began to be described as citizens having freedoms. Prior to 1789, social status in France was based on subjecthood, hierarchy, and domination. Sovereignty belonged to the King, whose power was consolidated by the assertion that he was God’s representative on Earth.49 Following the Revolution, the first compilation of a comprehensive list of individual rights was defined and codified in the “Declaration of the Rights of Man and the Citizen” and was adopted in France.50 The freedoms and liberties of the individual and his/her beliefs were therefore better safeguarded.51

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At the same time, military service became demonstrably as important an aspect of the state-citizen relationship as any that existed, changing the context of citizens’ rights and obligations.52 In fact, at the beginning of the twentieth century, when the nation-state idea became widespread, the number of countries in Europe that recognized the right to conscientious objection was very small. For instance, only Norway in 1900, Denmark in 1917, Sweden in 1920, and the Netherlands in 1922 recognized the right to conscientious objection in their domestic jurisprudence.53 Britain in 1916 became the first European country to recognize the right to conscientious objection even in the time of war.54 At that time, in most countries, conscientious objectors were labeled cowards or traitors, or were incarcerated for years at a time in prisons or mental hospitals.55 In portraying the European situation, it should be pointed out that it took rather longer for Catholic countries to recognize the right to conscientious objection.56 The Catholic Church refused to recognize the right until 1965 when the Second Vatican Council was instrumental in changing the Catholic Church’s stance on the issue of conscientious objection stating that “it seems equitable that the laws should provide with humanity for those who, for reasons of conscience, refuse to use weapons, provided, however, that they agree to serve the human community in another way.”57 Further, in 1971, the Second General Assembly of the Synod of Bishops announced: “Let a strategy of nonviolence be fostered also, and let conscientious objection be recognised and regulated by law in each nation.”58 Following these messages certain Catholic countries, such as Italy in 1972 and Spain in 1976, recognized the right to conscientious objection in their domestic law.59 To return to the First World War, it was during this period that a transformation took place in the character of the debate on conscientious objection. Although the nation-state idea persisted, the concept of conscientious objection underwent a metamorphosis from a religious to a political context.60 It is no coincidence that peaceful societies and nonreligious and political war resistance organizations such as War Resisters’ International were established at this time.61 Socialist and anarchist conscientious objectors began to participate in antiwar debates in this period, too. In sum, the conscientious objection movement in Europe was strongly inf luenced by antiwar and anticapitalist ideologies. Illustrative of the latter, socialists refused to take part in the First World War.

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These socialists believed that it was senseless for the working class to pay the price for wars instigated by the ruling class.62 However, it should not be understood from this that socialism is necessarily pacifist.63 The words of Lenin, leader of the 1917 Russian revolution, confirm this view: “Pacifism, the preaching of peace in the abstract, is one of the means of duping the working class. Under capitalism, particularly in its imperialist stage, wars are inevitable.”64 According to Lenin, it was the causes of war that were rejected, not war itself. Socialism is not opposed to war and violence per se but, instead, legitimizes a revolutionary war.65 Anarchists also participated in the conscientious objection movement during the First World War. Like Marxism, Anarchism is also opposed to private property and a class system, but what differentiates it from socialism is its opposition to all forms of authority. Williams, a scholar, has an interesting angle on anarchism and pacifism: Absolute pacifism rests on the view that no state should ever use violence against another state, even in self-defence or in defence of others; alternatively and even more radically, no person should ever use violence on any other person. It follows from either of these positions that no state should ever use violence on any person. But if the state is not permitted to use violence on any person then there is no state, because a state necessarily has a monopoly of violence which it can legitimately deploy against persons. From this it follows that a pacifist is an anarchist. 66

While anarchists believe that wherever there is authority there will be wars and armies, on the subject of whether to oppose unconditionally the use of force, they hold varying views: de Light and Tolstoy, leading thinkers, rejected the use of force in all circumstances, 67 while it is apparent that the anarchists of Catalonia 68 in Spain were not slow to use force in legitimate self-defense.69 During the last 30 years, the theory of antimilitarism has been taken from anarchist and socialist theories and has begun to be defined in its own right. It has affected the conscientious objection movement worldwide because one of the fundamental characteristics of this theory lies in its recognition of strong links between war, military service, violence, and militarism. It argues that, with the organization of force, armies are formed and a militarist state comes into being.70 Given that antimilitarists continue to make a significant contribution to the conscientious objection debate on a nonreligious basis, it will be useful at this juncture to address the connection between antimilitarists and the conscientious objection movement.

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Antimilitarists maintain that in a militarist state structure, the army, in particular, is a symbol of power; individuals, once enlisted, are made to take on new physical behaviors. They contend that the cutting of hair, the saluting of a superior and the wearing of uniform clothing in the army serves to give the individual a new form and style. During the period of military service the individual is given the ability and the permission to use force. Antimilitarist theory points out that although using violence in civilian life is condemned as a crime, when in uniform committing violent acts is a citizen’s duty and, so, becomes a virtue.71 In summary, Saigol argues that it is this process itself which stimulates war: When symbols, ideas, feelings, comprehension and forms of imagination based on violence inf luence the whole of society and when it becomes inconceivable that any problem could be resolved without resorting to armed force then militarisation has been realised. Force comes to dominate all institutions of society and ideas of war, conf lict, fighting, blood, martyrdom, victory, defeat, hero and traitor even become part of everyday life. In such situations civilian institutions even adopt and internalise the language of the army.72

As antimilitarists oppose all kinds of war, they argue that the conscientious objection movement possesses a critical significance as regards the development of peaceful, nonviolent actions targeting all forms of violence including direct physical violence, structural violence, and cultural violence.73 However, despite the fact that the the two cannot always be separated so clearly, it is essential to note there is a difference between belief or conviction based on conscience on the one hand, and political opinion on the other, between a conscientious objector who thinks that killing is wrong and an antimilitarist who believes that war is a vehicle for the state to perpetuate and enlarge itself. Nevertheless, both oppose what they perceive as an evil.74 In the case of opposition to a system of compulsory military service where military service is deemed by the state to be a national duty, it is not sufficient to refuse call-up without convincing the authorities that one’s reasons are based on strong urgings of conscience rather than mere opinion. “Political” reasons are not acceptable.75 Concurrent with the radical change in the state-individual relationship, the development of modern individualism and the secularization of conscience meant that conscientious objection began to be expressed

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as an individual’s action to protect his/her own identity, moral integrity, and well-being.76 As Arendt, a political theorist, says “The rules of conscience hinge on interest in the self. They say: beware of doing something that you will not be able to live with.” 77 Thus, conscientious objection has reached its coming of age as an individual stance opposing state power to make decisions regarding the lives of citizens. As Turner so appositely said: I deny the right of the State to compel me to undertake any service to which I have a conscientious objection. My life is my own and I claim to dispose of it as I will, particularly as the State has had no part in my introduction to this part of the earth, nor has it assumed any responsibility for my life in the past.78

In sum, in addition to religious reasoning, the right to conscientious objection has now begun to be articulated within a nonreligious framework. As such, freedom of conscience is no longer held in a solely religions form. To illustrate, in 1970 the US Supreme Court rendered the first judgment recognizing the nonreligious nature of conscientious objection as separate from religious motives.79 Recognition of the right to conscientious objection for secular reasons as well as for religious reasons testifies to the evolution of the recognition of conscience and freedom of conscience, and clearly demonsrates how the scope of these concepts has broadened. Furthermore, this recognition benefits those conscientious objectors whose declaration is not based on religious grounds, and shows how freedom of conscience for such people is safeguarded in the present day. Concluding Remarks Throughout history, conscientious objectors have experienced difficulties in gaining recognition. Just as in the past, some modern day countries still class conscientious objectors as traitors or cowards. However, the concept of conscientious objection is, in fact, now accepted by a growing number of countries, including both those with secular and religious dimensions to their domestic law. Such a transformation has been due to the secularization of conscience and the development of modern individualism. 80 In the twenty-first century, with widespread moves toward professional instead of conscripted armies, the relationship between citizen and state as regards concepts of national duty and citizenship duties is

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still being questioned within the framework of the conscientious objection movement. The next chapter will define the several principles on which conscientious objectors base their objections. It will be seen that conscription alone is not rejected. The chapter will also seek to understand the various interpretations of national mechanisms that deal with the differing forms of conscientious objection.

CHAPTER 3

Categories of Objectors to Military Service

C

onscientious objection is an individual choice. It is, therefore, evident that it can take many different forms.1 With regard to conscientious objection to military service, a certain number of conscientious objectors are reluctant to take part in any military activity at all. Other conscientious objectors agree to work in alternative civilian service or in unarmed military service. Yet others refuse to participate only in a particular war or conf lict. 2 Moskos and Chambers divide conscientious objectors into categories based on the objectors’ motivations, the scope of their beliefs or their degree of willingness to cooperate with the state, which is especially represented by the military or government’s conscription agency in the case of military service. Conscientious objectors may be further classed as religious or secular as regards their motivation. Regarding beliefs, Moskos and Chambers distinguish between conscientious objectors as either universalistic or selective (or discretionary). In terms of willingness to cooperate with the state and the military system these writers divide conscientious objectors into three subgroups: noncombatant, alternativist, or absolutist conscientious objectors.3 In an alternative interpretation, Brock separates conscientious objectors into only two groups on the basis of their degree of willingness to cooperate with the military system: absolutists or alternativists.4 Eberly and Rodotà divide conscientious objectors into total and selective (partial) conscientious objectors on the basis of the scope of their beliefs.5 Lippman identifies three groups of conscientious objectors according to their motivation: religious, ethical, or political.6 It can be seen from the foregoing that some scholars have distinguished between conscientious objectors according to their motives or beliefs.

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However, a more appropriate way to distinguish conscientious objectors to military service would, arguably, be one based on their degree of willingness to cooperate within the state or military system. This point of view can be illustrated by considering two types of conscientious objectors, apparently similar in that both base their reasons on religious belief but whose rejection is, in reality, related to the different conditions of service. The “total” conscientious objector refuses to perform both armed and unarmed military service as well as alternative civilian service, and the “alternativist” refuses to perform armed or unarmed military service but will not baulk at alternative civilian service. In sum, different conscientious objectors reject different aspects of the service, whether for religious or nonreligious reasons, thereby conveying their degree of willingness to cooperate with the state and military system. Therefore, the following four groupings will be discussed in this chapter: total (absolutists), alternativist, noncombatant, and selective conscientious objectors. Total (Absolutist) Conscientious Objectors Total (absolutist) conscientious objectors reject any form of cooperation, direct or indirect, with the military system. They are totally opposed to war and killing, whatever the circumstances, most of them being committed pacifists.7 As regards compulsory military service in particular, total objectors oppose being forcibly conscripted. They also refuse to perform noncombatant8 or alternative civilian service as they believe such service on their part would only serve to support war. Thus their refusal includes being directed by the State or army in their choice of alternative service.9 Baldwin explained in a declaration on October 30, 1918 why he was refusing to register for the draft as a total objector:10 The compelling motive for refusing to comply with the [USA] draft act is my uncompromising opposition to the principle of conscription of life by the state for any purpose whatever, in time of war or peace. I not only refuse to obey the present conscription law, but I would in the future refuse to obey any similar statute which attempts to direct my choice of service and ideals. I regard the principle of conscription of life as a f lat contradiction of all our cherished ideals of individual freedom, democratic liberty and Christian teaching.11

In sum, total objectors reject any degree of cooperation whatsoever with the military system in time of war or peace.12 It will be seen in part II

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that there is no support for these conscientious objectors in domestic or in international law and consequently total conscientious objection is not currently a legal issue.13 Total objectors have received prison sentences, for example, 6,000 total objectors were imprisoned in the United Kingdom (UK) during the First World War.14 Moreover, people declaring their total objection in countries such as Finland, a country that provides for alternative civilian service, continue to be sent to prison to the present day.15 Alternativist and Noncombatant Conscientious Objectors There have always been a certain number of people who do not reject the military system completely. Many people take on duties in noncombatant military service (currently called unarmed military service) or in “alternative civilian service.”16 Some international documents use the term “[alternative] service” to cover both services,17 however, there is a difference between conscientious objectors who agree to perform unarmed military service and conscientious objectors who agree to carry out alternative civilian service. In this respect, a few points need to be clarified regarding the two kinds of service. First, as Brett points out, there is no such thing in national or international law as the right to alternative service (including alternative civilian service and unarmed military service), rather: “it is a requirement imposed by the State, not a right.”18 States lay down in their domestic legislation where and for how long alternative service will be undertaken. If conscientious objectors refuse to perform an alternative service, they are penalized.19 The second important point is that alternative civilian service and unarmed military service do not exist in countries without compulsory military service. Alternative civilian service or unarmed military service performed as alternatives have been set up only in countries where military service is compulsory so that conscientious objectors can carry out their national service, albeit in another manner. 20 Historically, unarmed military service was initially provided during the First World War as a method of gathering together in one place conscientious objectors who opposed the system of compulsory military service. 21 Noncombatant conscientious objectors do not refuse to join the army nor to wear a military uniform. Like other soldiers, they do not object to saluting or taking orders; the one aspect that distinguishes them from other soldiers is that they neither use weapons nor take part in armed combat, nor do they take part in military training. For

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example, objectors in this grouping worked in Non-Combatant Corps (NCC), the Royal Army Medical Corps, or the Friends’ Ambulance Unit in Britain during the First and Second World Wars. 22 By contrast, alternative civilian service is an obligatory service completely separate from the armed forces. 23 Alternative civilian service existed in both the First and Second World Wars and, indeed, in Britain and in the USA during both wars people involved in “work of national importance” 24 were considered to be doing alternative civilian service. The conscientious objectors in this group were put to work in forestry, hospitals, schools, or farming. This type of conscientious objector made a significant contribution to the national economy by providing cheap labor. For instance, during the Second World War, the USA employed 11,950 conscientious objectors in alternative civilian service, saving more than 18 million dollars; 25 four million dollars were saved solely by employing conscientious objectors in hospitals. 26 In carrying out their work, alternativist conscientious objectors refused to wear military uniform and to receive military orders.27 The ideas advocated by conscientious objectors in this group are expressed thus in a leaf let from 1916: “We cannot undertake [such] duties under a military oath which necessitates obedience to all orders and makes us part of the military machine.” 28 Alternativist conscientious objectors maintained that states had the right of discretion over people’s lives whereas military authorities had absolutely no right in this regard. 29 Since then, the position has improved such that, in October 2013, of the 15 Member States of the Council of Europe to have systems of compulsory military service, 13 have made provision for alternative civilian service.30 In Germany, for instance, over the ten years up to when the last conscripts were drafted on January 1, 2011, more than 100,000 persons annually performed their national service through alternative civilian service.31 In addition, in many European countries conscientious objectors work in areas of health, social work, education, and farming.32 Notably, these fields of employment comply with Eide and MubangaChipoya’s recommendation in their 1985 report that “[s]tates should, to the extent possible, seek to give the alternative service a meaningful content, including social work or work for peace development and international understanding.”33 It is interesting that in many countries those who perform alternative civilian service or unarmed military service are not treated equally with those who perform military service. For instance, in the Russian Federation unarmed military service is one-and-a-half times longer

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than the length of military service.34 Only three countries (Denmark, Estonia, and Moldova) of the 13 Member States of the Council of Europe with alternative civilian service have periods of duty of the same duration.35 The length of alternative civilian service has been a subject of debate in the Council of Europe. Two examples suffice to illustrate the general view of the states on this matter: during the preparation of the report on the right to conscientious objection by the Legal Committee for the Parliamentary Assembly of the Council of Europe, Mr. Bournias, a Greek delegate, highlighted in 1967 that “non-military service is by its nature much less arduous and less dangerous than military service proper.”36 Mr. Carollo, an Italian delegate, asserted in the 1977 debate of the Parliamentary Assembly of the Council of Europe, that the reason for making alternative civilian service longer than military service is to avoid seeing the number of conscientious objectors “artificially increased.”37 These comments show that states are concerned that in the event of their allowing the right to conscientious objection to every person who does not want to perform military service the f loodgates would open, with vast numbers of people taking advantage of the opportunity, risking the breakdown of the military machine. Therefore, the conundrum for states is how to ascertain whether a conscientious objector’s decision is a matter of conscience or not. It would appear that there are two existing approaches. One approach involves direct testing of the conscience. This is a difficult proposition for states to carry out as the correct methodology is open to question. A different and preferred approach, which has been adopted by many states, is to test the sincerity of conscience in an indirect way by making the duration of unarmed military service or alternative civilian service longer than the duration of regular military service. This latter approach is widely used in European States requiring compulsory military service.38 Nevertheless, such testing is a controversial issue: conscientious objectors and certain scholars claim that it is contrary to the spirit of freedom of conscience.39 Moreover, forcing a choice of unarmed military service or alternative civilian service for a longer duration could be said to lead to a violation of the principle in international human rights law that these services should be neither discriminatory nor punitive.40 In that respect, it is useful to focus on the solution of the German Federal Administrative Court. In its judgments of 1960 and 1985, this court advocated that the duration of alternative civilian service be longer than that of military service in order to test the sincerity of the

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declarations of conscientious objectors and to verify that conscientious objectors decisions were based on grounds of conscience. However, the Court was also aware that this approach might have been incompatible with Article 12a(2) of the German Constitution,41 pointing out that, according to the Article, the duration of alternative civilian service may not be longer than that of military service. The Court justified its view by highlighting that those who have completed their military service may possibly be assigned to reserve duties, although these duties would be of a very short duration.42 The German Court’s solution has been criticized by Michalowski and Woods in the following words: “Apart from an open contravention of a constitutional provision, the solution also goes against the spirit of freedom of conscience, as it punishes those who do no more than exercise a constitutional right.”43 Moreover, the demand for the longer duration of alternative civilian service or unarmed military service raises another issue: doing so could be considered a violation of the international principle that these types of services must not be discriminatory or punitive. As conveyed by Eide and Mubanga-Chipoya in their 1985 report: “States should provide alternative service for the objector, which should be at least as long as the military service, but not excessively long so that it becomes in effect a punishment.”44 Such discriminatory and punitive solutions have been challenged by international and regional bodies and will be examined in depth in the next part.45 In conclusion, continued resistance to compulsory military service means that the alternative service provided by states has evolved from having a military character to a more civilian one. Moskos and Chambers explain that when states still limited the recognition of the right to conscientious objection to the historic peace faiths, provision for unarmed military service was made and broad religioun-based objection accepted. From such beginnings, alternative service, albeit in the form of unarmed military service, came into being. At that time such alternative service existed under a military aegis. However, Moskos and Chambers add that since the right to conscientious objection has begun to include secular and humanitarian motives, alternative service has generally been administered under the civil aegis, meaning that alternative service has taken on a civil nature.46 Where countries currently have compulsory military service and recognize the right to conscientious objection, such as Austria, Greece, and Norway, provision is also made for alternative civilian service.47

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Selective Conscientious Objectors Beside total, alternativist, and noncombatant conscientious objectors a further category of selective conscientious objectors has been identified. The term selective conscientious objection indicates an objection to serving as a soldier in a particular war or conf lict, in specific military actions, where particular weaponries or methods of warfare are used with respect to the war/conf lict in question. Selective conscientious objectors invoke international law and the fundamental principles of human rights in support of their refusal to participate in a specified conf lict.48 Selective conscientious objection became a political stance consequent to the participation of peace groups, human rights organizations, and socialist, anarchist, and antimilitarist political groups in the conscientious objection movement at the beginning of the twentieth century, particularly during the First World War. For this reason, the people in this grouping are sometimes described as “political objectors.”49 In recent history, selective conscientious objectors have appeared during the “Vietnam War,”50 the “Lebanon War,”51 the “Persian Gulf War,”52 the “Iraq War,”53 and the “Afghanistan War.”54 On examining these applications, the legal arguments made can be gathered under two headings: first, these conscientious objectors announce that in being coerced to take part in a war or conf lict that contradicts their conscience, their freedom of thought, conscience, and religion is violated. This argument will be examined in detail in part II. The second argument is based on the Principles of the Nuremberg Tribunal of 1950.55 According to Principle VI, “[p]lanning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances” and “[p]articipation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under [above]” are defined as crimes against peace under international law. A person who participates in specific military actions or uses particular weaponries or methods of warfare in respect of the war/conf lict in question is deemed to be aware that such engagement is a violation of international law according to the Nuremberg Principles. In addition, Principle IV states that “[t]he fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

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In a study prepared for the United Nations (UN), entitled “Freedom of the Individual under Law: An Analysis of Article 29 of the Universal Declaration of Human Rights,” Daes states that in committing a crime under the international law of war, the individual will still be held responsible even if the offence was committed pursuant to carrying out superior orders.56 Eide and Mubanga-Chipoya make reference to the Nuremberg Principles, contained in the Charter of the Nuremberg Tribunal, and reaffirmed in General Assembly resolution 95(1) of December 11, 1946, according to which an individual is responsible for actions that violate international law, regardless of whether or not he has been involved in taking the decision that leads to the contravention.57 Within the framework of these principles, conscientious objectors point out that the Principles emphasize the individual’s responsibility as regards crimes against peace and humanity. Conscientious objectors also underline the fact that the lack of criminal provision in domestic law for such a responsibility does not absolve individuals of the obligations arising from international law in line with the Nuremberg Principles.58 The right to selective conscientious objection is a right that both professional soldiers and conscripts may demand. Selective objection is the most frequently reported form of conscientious objection within professional armies at present. Professional soldiers—like conscripted soldiers—may refuse to take part in particular wars on the basis of reasons of conscience, including profound convictions arising from religious, ethical, moral, humanitarian, philosophical, or similar beliefs.59 The right to conscientious objection for professional soldiers whose conscientious objection has burgeoned during service has also been safeguarded under international human rights law.60 However, while there is a large increase in the number of countries that have recognized the right to conscientious objection for conscripted soldiers, there are very few countries guaranteeing this right for professional soldiers. For example, of the 47 Member States of the Council of Europe only Germany, 61 the Netherlands, Switzerland, and the UK ostensibly recognize the right to conscientious objection for professional soldiers who do not wish to participate in certain conf licts. Denmark and Norway 62 have compulsory military service and also recognize selective conscientious objection.63 Unfortunately, authorities in Germany, the Netherlands, Switzerland, and the UK do not always implement the right to conscientious objection for selective conscientious objectors in practice. For instance, in the UK the right to selective conscientious objection exists in the

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regulations governing professional soldiers.64 According to the UK’s Ministry of Defence instruction 006-Retirement and Discharge on Grounds of Conscience from the Army, a soldier must provide written evidence to support his/her claim of conscientious objection to the Army Retirements Board and/or Army Retirements Appeals Board.65 If the Army Retirements Board and/or Army Retirements Appeals Board accepts the claim on the basis of conscience, these Boards will approve the application to resign or retire.66 Another route is for the soldiers to tell their commanding officer that they wish to raise a conscientious objection. Their officer may reject the application or transfer the applicant to a noncombatant role.67 In illustration of the lack of coherence between theory and practice, during the Iraq and Afghanistan Wars, several UK soldiers, including Malcolm Kendall-Smith, Joe Glenton, and Michael Lyons, objected to participation in these wars, believing them to be illegal.68 Malcom Kendall-Smith was sentenced to eight months imprisonment for disobeying orders on April 13, 2006.69 Joe Glenton was sentenced to nine months imprisonment on charges of absence without leave on March 5, 2010.70 Michael Lyons was sentenced to seven months imprisonment for disobeying orders on July 5, 2011.71 In the case of Malcolm KendallSmith, the Judge, advocate Jack Bayliss, who presided over the Court Martial, stated that Obedience of orders is at the heart of any disciplined force. Refusal to obey orders means the force is not a disciplined force but a rabble. Those who wear the Queen’s uniform cannot pick and choose which orders they will obey. Those who seek to do so must face the serious consequences.72

Moreover, in the Netherlands, citing the Iraq war, the Ministry of Defence announced in 2004 that the only option for professional soldiers who conscientiously objected to a certain military operation would be discharge.73 The majority of European States do not recognize the right to selective conscientious objection and those countries that affect to recognize it may not do so in practice, depending on the situation.74 This dichotomy is summarized by Eide and Mubanga-Chipoya as follows When the objector is not a pacifist, but objects to participation in military service because of the alleged illegality of the purpose of or the means and methods used in armed combat, the conf lict of values becomes much

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more acute. No Government is likely to agree that the way in which it uses its armed forces is illegal, under national or international law.75

In addition, Hammer points out that selective conscientious objection causes heightened administrative concern in the army and could seriously impinge on general military readiness.76 It is useful to examine the US Gillette judgment in considering this argument. Gillette’s humanist approach to religion led him to claim that the Vietnam War was an “unjust war.” His views about the nature of human existence were deeply held.77 However, he underlined that he would be willing to participate in a war of national defense or a war sponsored by the UN as a peacekeeping measure.78 The US Supreme Court announced that recognition of this right “would open the doors to a general theory of selective disobedience to law and jeopardize the binding quality of democratic decisions.” 79 In short, the judgment relies on the “f loodgates argument” and stresses the fact that governments rely on being able to control great numbers of people in the military system at all times in order to pursue their military aims. 80 In answer to government fears of military collapse, it is a fact that despite the UK’s recognition of selective conscientious objection in the 1939 Conscription Act, British readiness in the Second World War was not negatively affected. 81 During the whole of that conf lict the total number of conscientious objectors in the UK was 61,000, only 1.4 percent of those conscripted. 82 This number included all types of conscientious objectors (absolutist, alternativist, and noncombatant conscientious objectors). The percentage of selective conscientious objectors was therefore much smaller. Moreover, in the Persian Gulf War only 473 of 500,000 US Army personnel made a declaration of selective conscientious objection: a numerically insignificant figure. 83 Some scholars argue that recognition of the right to selective conscientious objection actually improves administrative efficiency of the military without causing it to lose morale. They suggest that it is beneficial for the military to filter out conscientious objectors who will not act according to military orders. 84 A case of successful selective conscientious objection occurred in Germany in 2005, where the German Federal Administrative Court allowed selective objection for particular wars, such as the Iraq War. Florian Pfaff (a major in the German Bundeswehr) refused two orders given to him by his superiors regarding the further development of a military software program. He claimed that the reason for his refusal

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was that the programs were going to be used in the Iraq War and that for reasons of conscience he was unwilling to carry out these orders.85 The Military Court found him guilty of disobeying orders. The Military Court also demoted him to the rank of a captain. However, the Administrative Court found a violation of freedom of conscience. The Administrative Court at first highlighted previous judgments stating a soldier’s duty of obedience does not exist if “ . . . an order, failing to respect the principle of reasonableness encroaches particularly deeply into the sphere of the personality, with the result that following it would be unreasonable (BDH 4, 181, 183). No further grounds are required that this personal sphere is touched if a soldier is asked to carry out an order against his conscience.”86

In this judgment the Administrative Court agreed that soldiers had the right to freedom of conscience, in accordance with Article 4(1) of the German Constitution and that it was deemed a fundamental right, like the freedom of religion and belief (religious or ideological). The Administrative Court further stressed that an individual could not act in contravention of a decision of conscience without being caught in a serious moral dilemma. 87 Indeed, the Administrative Court emphasized that a decision of conscience is any serious moral decision, i.e. oriented to the categories of “good” and “evil,” which the individual, in a particular situation, experiences as binding in and of itself and as creating an imperative inner obligation, with the result that he could not act against it without a serious moral dilemma. 88

Finally, the Administrative Court concluded on June 21, 2005 that If a soldier has made a decision of conscience that is protected by the fundamental right to freedom of conscience (Article 4, para. 1 GG89), he is entitled not to be prevented by official powers from acting in accordance with the dictates of his conscience which are binding upon him and impose an imperative obligation upon him.90

While this judgment was encouraging for selective conscientious objectors in that it represented a breakthrough in terms of effective recognition of a soldier’s right to have sincere qualms about the legality of orders received, most states persist in maintaining a rigid stance of nonrecognition of selective objection. Certain organizations and scholars

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have made known the view that all states should, like Germany, recognize the right to selective objection. For instance, Cohen says: It is absurd to demand of individuals, before allowing that their acts may be truly conscientious, that the principle they employ be universal scope. It is foolish to insist that the judgments of individuals be sweeping, when the laws, nations, and individuals we most respect are always making careful distinctions in the application of moral principles.91

Furthermore, during and after the Vietnam and the Persian Gulf Wars in particular, it was argued that for each individual conf lict human beings have the right to apply their own moral standards as thinking creatures. In fact, these principles are in parallel to the notion of the “Just War.” 92 For reasons of their own conscience as well as for other reasons, selective conscientious objectors announce their objection to the legitimacy of wars and conf licts as inspired by the Just War doctrine. Despite the fact that there are differences between selective, total, alternativist, or noncombatant conscientious objectors in terms of their willingness to cooperate with state and military systems, selective conscientious objectors believe that no distinction should be made between selective conscientious objectors and other types of conscientious objectors.93 It is impossible to deny the strength of this argument as, like other forms of conscientious objectors, selective conscientious objectors underline their right to conscientious objection as a legitimate exercise of freedom of thought, conscience, and religion. Major agrees, saying that since the same feelings of sincerity and conviction exist among selective, total, alternativist, and noncombatant conscientious objectors, discriminating between them is unacceptable.94 Concluding Remarks The foregoing has shown that state requirements from conscientious objectors have undergone change. After the French Revolution, states began to recruit their citizens for fixed periods in the name of compulsory military service described as “national service.” With the emergence of alternative service (including alternative civilian service and unarmed military service) the concept of national service was no longer restricted to the narrow confines of military service. Not everyone was expected to be a soldier and the possibility of individuals performing their national service through alternative service was secured.

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Fundamentally, when an alternative civilian service was created, it came under the control of military authorities. In the late twentieth century, resistance by conscientious objectors resulted in the civil authorities taking control of alternative civilian service. In many countries, the twenty-first century has seen professional armies based on voluntary recruits replacing armies based on compulsory military service. Today, even professional soldiers, in some cases, are allowed to be selective conscientious objectors as they make clear their opposition to participation in certain wars/conf licts, or the use of certain methods of war. As a result, the relationship between individuals, the military system, and the state has been transformed leading to conscientious objection taking on a variety of forms. At the same time, the states themselves have developed their own interpretations of this relationship, which may vary from country to country. Understanding how different forms of conscientious objection are perceived at the national level serves as a prelude to the next part, which examines the definition of the right to conscientious objection in international human rights law.

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PART II

Conscientious Objection to Military Service as a Human Right

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he first studies on the right to conscientious objection to military service were carried out as early as the 1950s.1 Since then, such studies have increased both in volume and frequency until this right has become an almost perpetual agenda item for many intergovernmental 2 and nongovernmental 3 organizations (NGOs). Today, Article 10(2) of the Charter of Fundamental Rights of the European Union (EU) and Article 12(1) of the Ibero-American Convention on Young People’s Rights contain specific provision explicitly recognizing the right to conscientious objection to military service.4 In addition, this right is recognized by the United Nations (UN) and European mechanisms as a legitimate expression of freedom of thought, conscience, and religion, provided for in all general international and regional human rights texts.5 This part deals with the right to conscientious objection at both the international (UN Human Rights System in chapter 4) and regional (European and Inter-American Human Rights System in chapter 5) level. Understanding the current content of the right to conscientious objection in international law is a prerequisite to understanding the obligations that this right entails for the countries where the right remains unrecognized. The examination of relevant international and regional documents will have two dimensions: first, the travaux pr éparatoires of the “relevant

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articles in the Universal Declaration of Human Rights and the UN, European and Inter-American treaties”6 will be examined as an important part of the historical evolution of the applicability of freedom of conscience to the right to conscientious objection.7 As for the second dimension of the examination, case-law from UN, European, and Inter-American mechanisms will be scrutinized in order to better comprehend the present scope of the right to conscientious objection as part of the right to freedom of thought, conscience, and religion. In addition, in order to further clarify the present scope of the right to conscientious objection, reference will be made to resolutions, recommendations, and reports regarding this right in nonjudicial mechanisms within the UN, European, and Inter-American systems. 8 This part also assesses whether the UN apparatus allows reliance on persecution of conscientious objectors as a ground for awarding refugee status. In this context a close look will be taken at the relevant documents in international refugee law.

CHAPTER 4

International Level: The United Nations Human Rights System

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his chapter will deal with the relevant articles of the Universal Declaration of Human Rights (hereinafter “UDHR” or “the Declaration”) and the International Covenant on Civil and Political Rights (ICCPR). In addition, to better understand the present scope of right to conscientious objection the attitudes of the UN mechanisms will be examined in this chapter. The Universal Declaration of Human Rights, Article 18 In his annual address to Congress on January 6, 1941, Franklin D. Roosevelt, former President of the the United States of America (USA), outlined four essential freedoms: “Freedom of speech and expression, the freedom of worship, the freedom from want, and the freedom from fear.”1 The Four Freedoms expressed by Roosevelt represented the culmination of increasing pressure during the 1940s which, looking forward to the end of the Second World War, aimed at ensuring that human rights would be safeguarded in peacetime and that they would, in fact, become sine qua non for peace. 2 To this end, Franklin D. Roosevelt and Winston Churchill, former British Primer Minister, signed the Atlantic Charter on August 14, 1941 but of Roosevelt’s four main freedoms, only “freedom from fear and want” were explicitly referred to in the Charter; no mention was given to freedom of religion or freedom of conscience.3 However, freedom of religion was included in the Declaration by the United Nations of January 1, 1942.4 In the aftermath of the Second World War, the four

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freedoms became the values that were to underlie the Charter of United Nations. 5 The Charter of the United Nations was drafted at the San Francisco Conference on April 25, 1945. It was adopted on June 26, 1945 and entered into force on October 24, 1945. Despite the absence of any direct reference to freedom of thought, conscience, and religion in the Charter, references to human rights and fundamental freedoms in general are contained in the Preamble and Articles 1, 13, 55, 56, 62, 68, and 76. These provisions refer directly to nondiscrimination on grounds of religion. However, certain legal scholars claim that the provisions refer indirectly to freedom of thought, conscience, and religion, especially relevant when history provides so many cases of religious intolerance; 6 to further international peace, it was essential to safeguard freedom of religion as well as freedom of thought and conscience.7 Furthermore, at the San Francisco Conference, there was strong national and international pressure to see a bill of human rights included as part of the Charter of the United Nations. 8 This came to fruition when, in 1946, the Economic and Social Council (ECOSOC) established the Commission on Human Rights (CHR), which was responsible for preparing an international bill of rights. This Commission, in turn, established a Drafting Committee.9 The Drafting Committee submitted its Universal Declaration of Human Rights in 1948 to the Third Committee of the General Assembly of the United Nations, which adopted the document and proclaimed it on December 10, 1948.10 Travaux Pr é paratoires of Article 18 of the Universal Declaration of Human Rights The right to freedom of thought, conscience, and religion has a long history both in domestic and international law.11 Boyle states that The phrase thought, conscience and religion in Article 18 of the Universal Declaration [of Human Rights], is shorthand for a very long time of struggle in Europe for individual freedom of thought against the power of Church and State. It also speaks of the long struggle for religious liberty and religious toleration in Europe.12

Consequently, Article 18 of the UDHR entered the international arena with less debate than was aroused by the other articles of the UDHR.13 The issue of conscientious objection itself was never raised during the drafting process of Article 18 of the UDHR. Furthermore, unlike Article 8(3)(c)(ii) of the International Covenant on Civil and

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Political Rights, Article 4(3)(b) of the European Convention on Human Rights (ECHR), and Article 6(3)(b) of the American Convention on Human Rights (AmrCHR), the UDHR contains no specific article that makes use of the term “conscientious objection/conscientious objector.” However, the absence of debate on the right to conscientious objection is not an obstacle to ascertaining whether the UDHR currently encompasses this right. In pursuance of this point, it is instructive to look at the drafting process of Article 18 that safeguards the freedom of thought, conscience, and religion to which the right to conscientious objection is linked.14 The main issue for discussion in relation to Article 18 was whether it was to serve solely to protect the right to freedom of religion or whether it should also incorporate other forms of belief. It is apparent that at the time the UDHR was being drafted, there were different views on defining the terms “thought,” “conscience” and “religion.”15 The ECOSOC Secretariat outline had initially proposed that “[t] here shall be freedom of conscience and belief and of private and public religious worship.”16 This draft embodied the essence of the second of Roosevelt’s list of four freedoms, that is “freedom to worship God in his own way everywhere in the world”17 but with the unequivocal addition of the freedom of conscience.18 In June 1947 a “more expansive approach”19 was adopted by the Drafting Committee and alternative drafts were submitted to the CHR. 20 These alternative drafts were amalgamated and abbreviated by the CHR in December 1947 to form Article 16 of the Draft UDHR (Article 16 later became Article 18), 21 which was then adopted and passed to the ECOSOC. Draft Article 16 provided: 1. Individual freedom of thought and conscience, to hold and change beliefs, is an absolute and sacred right. 2. Every person has the right, either alone or in community with other persons of like mind and in public or private, to manifest his belief in worship, observance, teaching and practice. 22 The proposal did not address freedom of religion directly. In that respect, Evans interprets the situation as follows: “This could be taken either to suggest that only religious beliefs were encompassed by the draft, or that all forms of belief were divine in nature.” 23 Hammer points out that the drafters endeavored to protect other beliefs with the wording of this proposal. 24 He adds that the proposal is on this account rather important 25 because the Annex to the Secretariat’s draft indicates that the draft did not protect only “conscience, belief, and opinion,” 26

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but also “religion or any other belief as dictated by his conscience,” 27 or “freedom of religion, conscience, and belief.” 28 Subsequently, delegates from France, Lebanon, the United Kingdom (UK), and Uruguay submitted a proposal on Article 16 that became identical to the final version of Article 18 of the UDHR. In this proposal, the term “absolute and sacred right” was deleted 29 and the amendment approved by the CHR.30 It is clear that the drafters of this proposal intended to incorporate other forms of belief rather than solely religion.31 They did not, therefore, delete “freedom of thought and conscience” in the final provision. The conclusion to be drawn is that the concept of belief was not envisaged as being addressed only in regard to its religious aspect. This means that the drafters of the UDHR intended to incorporate and protect other forms of belief than just the right to freedom of religion. Thus, they ensured that Article 18 contained clear provision for the individual’s right to freedom of conscience. This broad interpretation of the concept of belief is significant for those conscientious objectors whose claim is based on nonreligious grounds. During the travaux pr éparatoires of Article 18 of the UDHR, a separate debate took place on the issue of the right to change one’s religion or belief, raised by certain Islamic countries, including Saudi Arabia and Egypt.32 From their point of view, it should be sufficient to state that “everyone has the right to freedom of thought, conscience, and religion.” They considered it unnecessary to particularize this right. The Saudi Arabian delegation felt that to do so would “violate the spirit of the other articles of the Declaration. The article would have an unfortunate effect on many people in many parts of the world and there did not actually seem to be any need for such an insertion.”33 The Saudi amendment was nevertheless rejected due to the fact that, for the majority of delegates, the right to change one’s religion or belief was a very significant part of the freedom of religion.34 The Lebanese delegate declared that This provision was needed, because the Declaration was also meant to protect a man’s “inner being” and “the possibility of each individual to determine his own destiny.” That was the reason for the special mention . . . of the freedom for an individual to change his belief; as such change might be at the root of a new spiritual impulse.35

The UDHR considers belief to be a sphere where the individual alone freely makes all sorts of decisions pertaining to himself/herself. This

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sphere constitutes the forum internum aspect of freedom of thought, conscience, and religion and no one may infringe it. The significance for those wishing to exert the right to conscientious objection is that decisions based on religious or nonreligious reasons by conscientious objectors in fact relate to the forum internum aspect of freedom of thought, conscience, and religion. However, the manifestation of this decision in the public sphere concerns the forum externum aspect, which may be subject to limitation. In fact, the forum externum aspect of this freedom is restricted by a general limitation clause in Article 29 of the UDHR.36 In sum, the forum internum and forum externum aspects of the freedom of thought, conscience, and religion were eventually clearly delineated in Article 18 of the UDHR. In June 1948 Article 18 was adopted by the CHR.37 In addition, the CHR also adopted the whole draft UDHR.38 The draft text was afterward referred to the General Assembly that adopted the UDHR together with Article 18.39 In the next section, the present scope of the concept of freedom of thought, conscience, and religion, as viewed by the UDHR will be further explored. It will be seen how far, if at all, Article 18 of the UDHR currently provides the right to conscientious objection. Final Text: The Meaning of Article 18 of the Universal Declaration of Human Rights The final version of Article 18 of the UDHR regarding freedom of thought, conscience, and religion can be interpreted as comprising two parts: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The first part guarantees everyone’s right to freedom of thought, conscience, and religion; the freedoms of “thought” and “conscience” are closely connected to freedom of “religion.”40 As Liskofsky states, [c]ombining “thought” and “conscience” with “religion” in . . . the Universal Declaration . . . , terms not defined nor even extensively

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discussed in the drafting, was a compromise intended, without saying so explicitly, to embrace atheists and other nonbelievers. According to one authority, the terms include “all possible attitudes of the individual to the world, toward society, and toward whatever determines his fate and destiny in the world, be it a divinity, a superior being, reason and rationalism, or chance.” Thought encompasses political and social thought and all morality is included in conscience.41

The second part of the article defines the term “right to freedom of thought, conscience, and religion” in two-pronged aspects. The first prong makes reference to “freedom to change his religion or belief ” and concerns the internal sphere of this right, the forum internum. The second prong mentions “freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance” all of which concerns the external sphere of that right, the forum externum .42 With regard to the forum internum , it is noteworthy that UDHR drafters perceived conscience to be a personal sphere. The individual is absolutely alone with his/her own self and is entirely free to determine his/her own destiny.43 The Lebanese delegate believed that “the main purpose of the Declaration was meant to protect a man’s ‘inner being.’”44 Boyle and Partsch point out that the essence of the UDHR is its recognition of the human being and the moral autonomy of the individual as formulated in Article 18.45 This interpretation is supported by Article 1 of the UDHR which provides that “[a]ll human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act toward one another in a spirit of brotherhood.” When we take this into account, the main purpose of the UDHR, it is evident that the internal sphere (forum internum) of freedom of thought, conscience, and religion is recognized as absolute and not subject to limitation. The state has no place in the forum internum aspect of freedom of thought, conscience, and religion.46 However, the forum externum of this freedom is subject to limitations. The UDHR’s drafters included certain general limitation provisions on human rights and freedoms in Articles 29 and 30.47 Article 29 provides a general limitation that can be applied to all Declaration rights. This includes the right to freedom of thought, conscience, and religion, as well as the right to manifest religion or belief, as found in Article 18. Daes explains the scope and purpose of Article 30 as follows: “the scope and purpose of Article 30 are to limit the rights guaranteed only to the

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extent that such limitation is necessary to prevent “their total supervision,” and must be narrowly interpreted in relation to this object.”48 Regarding the right to conscientious objection, Article 29(1) is highly significant. According to Daes, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, this article explicitly provides for an individual duty toward the “community,”49 the reasoning being given in the same paragraph: “it is only within the community that the free and full development of the personality of the individual is possible.”50 Certain states have invoked this paragraph as a legal basis for objection to the right to conscientious objection; in the view of these states, conscription of citizens to perform military service is one of the duties owed by citizens to the community.51 It is significant that at the time the UDHR was written, from the states’ perspective performing military service was a citizens’ duty toward his/her “community” in the light of the concept of the nationstate. This concept was central to the strongly held beliefs of the majority of UN Member States. For example, Austria asserted that despite the fact that the Austrian Constitution did not set fundamental rights against “basic duties,” Austrian legislation imposed duties on citizens such as compulsory military service.52 De Jong states that the above views were based on the narrow belief that the term “community” was the equivalent of “nation-state.” He highlights that, at present, even the concept of a nation-state is questionable as “community” does not necessarily equate to “national state.”53 Daes agrees: her UN report emphasizes that the concept of community may be broadly understood to define countries that have come together having common purposes and noble goals.54 Therefore, in the global world individuals’ obligations to community should not only be governed by domestic law, but should also take into account international standards.55 It has been seen in chapter 3 how individuals can be held responsible for committing crimes under the international law of war, in line with the Nuremberg principles.56 The question, then, arises of whether Article 29 will promote or restrain a soldier’s right to conscientious objection when he/she believes that his/her orders will undermine the primary purpose of the UN by threatening international peace and security. De Jong, Eide, and Mubanga-Chipoya argue that, since the individual has certain responsibilities and duties under the standards of international law, Article 29 cannot be used by states as justification for the nonrecognition of the right to conscientious objection.57

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Overall, there was strong recognition of a broad concept of conscience on the part of UN members during the drafting process of Article 18 of the UDHR. Indeed, the language of Article 18 is very important in that it defined the parameters of freedom of thought, conscience, and religion for all subsequent international standards, including the ICCPR, the ECHR, and the AmrCHR. Nevertheless, with regard to freedom of conscience in particular, it must be noted that the recognition of freedom of conscience under the UDHR presented a new departure point for international law.58 However, as to the possibility of a claim being made for the right to refuse to perform military service on grounds of conscience, no actual discussion was held. This lack of debate regarding the right to conscientious objection does not necessarily mean that this right is not currently recognized within the scope of Article 18 of the UDHR. It has been seen that a clear distinction was made in the Article between the forum internum and the forum externum ,59 whereby decisions taken by a conscientious objector for religious or nonreligious reasons concern that person’s individual sphere into which states have no right to intrude. The inner being of this person is protected by the UDHR and he/she may not be subjected to coercion to persuade him/her to abandon his/ her decision to object. The general limitations contained in Articles 29 and 30 mean that states may infringe only on the forum externum aspect of freedom of thought, conscience, and religion. However, as outlined above, these Articles should not constitute an obstacle to the recognition of the freedom of the right to conscientious objection. Consequently, in addition to the UDHR’s applying safeguards regarding the forum internum aspect of an objector’s decision, its protection extends to the forum externum, that is the manifestation contingent on such a decision. The International Covenant on Civil and Political Rights, Article 18 and Article 8(3)(c)(ii) The UDHR laid the foundations for the International Covenant on Civil and Political Rights (hereinafter “ICCPR” or “the Covenant”) and a host of other regional human rights texts. At the time of the UDHR’s adoption on December 10, 1948, the United Nations General Assembly, through ECOSOC, called on the CHR to give paramount importance drafting a covenant on human rights as well as for draft measures of implementation.60

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In 1952, however, the General Assembly voted to create not, as originally envisaged, one single covenant, but two separate human rights covenants as the final constituent parts of the International Bill of Human Rights.61 Finally, on December 16, 1966, the ICCPR with the Optional Protocol to the latter Covenant was adopted by the General Assembly but did not come into force until 1976.62 Travaux Pr é paratoires of Article 18 of the International Covenant on Civil and Political Rights 63 Given that the issue of conscientious objection arose during the travaux pr éparatoires of the ICCPR it will be interesting to examine Article 18 and the discussion that led up to its formulation. In fact, several issues were raised by the ICCPR’s drafters.64 First, the scope of the words “thought, conscience, religion, and belief ” was debated.65 By associating conscience with generally accepted beliefs, the ICCPR’s drafters aimed to draw a distinction from religion.66 They could not foresee how the freedom of thought, conscience, and religion would evolve in the future and so were reluctant to restrict the concepts under discussion too tightly.67 Consequently, defining the terms themselves was approached with caution. To illustrate: mixed opinions revolved around the definitions of the terms “conscience” and “to manifest.” The UK delegate maintained that conscience remains a private, subjective concept that cannot, therefore, be “manifested.”68 The delegate from Spain asserted that the verb “to manifest” could be applied only to theistic beliefs to the exclusion of atheist and secular leanings.69 An ethical interpretation was suggested by the delegate from Saudi Arabia who defined conscience as the capacity to distinguish right from wrong and good from evil by moral intuition.70 At the same time, the opinions of nonreligious believers were considered by certain delegates to be in need of protection. They argued that conscience should be understood as equal to religion. Therefore, despite the different approaches advocated by individual states, the drafters were agreed in their understanding that Article 18 should protect all manner of beliefs: religious and nonreligious.71 In that respect, the Secretary-General’s Representative highlighted the footnote on the first page of the Krisnaswami Study of Discrimination in the Matter of Religious Rights and Practices to the Committee, which read: “the term “religion or belief ” is used in this study to include, in addition to

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various theistic creeds, such other beliefs as agnosticism, free thought, atheism and rationalism.” 72 Furthermore, the delegate from Argentina, in supporting this interpretation, gave an enlarged definition of the term “belief ” that included all creeds and philosophical conceptions of man and the meaning of life, as well as those beliefs that direct an individual’s path in life.73 It is clear that the term “belief ” was understood by the drafters to mean a right to manifest nonreligious or secular beliefs such as atheism and rationalism.74 In addition, several debates were held on the implications of protecting the right to have or adopt a religion or belief of one’s choice and to manifest a religion or belief in public or private.75 As mentioned above, these debates were connected to the forum internum and forum externum aspects of the freedom of thought, conscience, and religion.76 Since, as outlined above, forum internum and forum externum are inseparable from conscientious objection, it would be useful to brief ly examine these debates. At the fifth (1949), sixth (1950), and eighth (1952) sessions of the CHR, freedom of thought, conscience, and religion had been characterized as being “absolute,” “sacred,” and “inviolable.” During those debates the forum internum aspect of the freedom was emphasized; it was announced that legal restrictions could not be placed on man’s inner thought or moral consciousness. However, it was nevertheless considered that legitimate limitation could be applied to external manifestations of religion or belief, which pertained to the forum externum aspect. It would appear that a consensus was reached on this issue.77 Similarly, the drafters of the ICCPR clearly intended to draw attention to the fact that conscience is an absolutely personal sphere in which the individual is alone and is free to take any decision concerning himself/herself. The drafters’ unmistakable intention was that, in accordance with Article 18(2) of the ICCPR, no one shall be subject to coercion that would impair his/her freedom to have or adopt a belief of his/her choice.78 It is clear that the drafters were careful to separate the forum internum and forum externum aspects. The drafting of the ICCPR began in 1948 and the Covenant was adopted in 1966. The same concerns were made clear by Member States during this drafting process as had arisen in the drafting of Article 18 of the UDHR. However, one important difference between the UDHR and the ICCPR is that the latter formulated Article 18 as a legal obligation.79

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Although the drafters of the ICCPR had no intention of analyzing conscientious objection in connection with the freedom of thought, conscience, and religion, one clear attempt at analysis was made: the Philippine delegate believed that “the provision concerning conscientious objectors might be taken up in connection with [draft] Article 16 [Article 18 in the final version], which dealt with the freedom of thought, conscience and religion.”80 Thus, the Philippine delegate proposed that “persons who conscientiously object to war as being contrary to their religion shall be exempt from military service.”81 Notably, the Philippine delegate’s initiative was, in fact, the result of a statement published by the NGO, Service Civil International in 1950. 82 This statement had been part of an application to the CHR for the recognition of conscientious objection and inclusion of the right to protect it in the UDHR. A year later the Philippine delegate proposed that this right be recognized in the ICCPR. 83 However, the Philippine delegate’s proposal was ultimately rejected by the majority of drafters, headed by countries such as the US and the UK. These states did not want reference to specific rights to be included in an article enshrining a general right. Moreover, the Chilean delegate said that military service was necessary for national discipline and patriotism, whereupon the Philippine delegate withdrew his proposal. 84 What emerges from these debates is evidence that there was little desire to enshrine the right to conscientious objection in the ICCPR as a fundamental human right at the time of its drafting. 85 Interestingly, the Indian delegates opposed the Philippine proposal on the grounds that it restricted the right to conscientious objection from the religious viewpoint, ignoring the rights of secular objectors.86 It must be remembered that during this period the concept of conscientious objection was not officially recognized in most countries. 87 The importance of national security during the Cold War meant that most countries believed that they had to maintain a strong army for effective defense of their homeland. Thus, domestic laws imposed certain duties on citizens including protection of the homeland and the performance of military service. 88 As a result, the attempt to recognize the right to conscientious objection explicitly within the scope of Article 18 was unsuccessful. However, although the majority of states decided against the inclusion of the specific right under an article in which a general right was embodied, this does not mean that the majority did not accept the existence of this right.

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Later sections of this chapter will explore the travaux pr éparatoires of Article 8(3)(c)(ii) in order to reveal discussions on conscientious objection. First, however, an analysis of the present scope of Article 18 will be made. Final Text: The Meaning of Article 18 of the International Covenant on Civil and Political Rights Article 18 as a whole was adopted unanimously in both the Third Committee and the General Assembly. 89 Article 18 reads as follows: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship observance, practice and teaching. 2. No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice. 3. Freedom to manifest one’s religion or beliefs may be subject to only such limitations as are prescribed by law and are necessary to protect public safety order health or morals or the fundamental rights and freedom of others. 4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and when applicable legal guardians to ensure the religious and moral education of their children in conformity with their own convictions. The four paragraphs of this Article rework the concepts contained in Article 18 of the UDHR (Para. 1).90 The limitation clause in paragraph 3 is inspired by the general limitation clause in the UDHR, and it is obvious that the source of the idea in paragraph 4 derives from Article 26(3) of the UDHR.91 On examining Article 18 of the ICCPR more closely, it may be asserted that freedom of thought, conscience, and religion is broad in scope. In this context, freedom is not limited only to a religious content, a point emphasized by the drafters of the Covenant.92 An important factor to be taken into account is that, the drafting process was held at the height of the Cold War. Thus, clashes between different views held during the process affected the scope of the right to freedom of thought,

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conscience, and religion. Nevertheless, the text of the article was significant in that it brought together at least four different world views: Western secular liberal thought, Christianity, Islam, and Marxism.93 As Partsch states: It is striking that despite the variety of state attitudes towards religion there was no substantial discussion of the fundamental principle that “everyone shall have the right to freedom of thought, conscience and religion.” That may be due to the “diplomatic” wording. Atheists may have been satisfied to see “thought” and “conscience” precede “religion.” Liberals may have been pleased to see all three freedoms on an equal level without preference to any one of them. Strongly religious people may have regarded “thought and conscience” as corresponding not only to religion generally but even to the only true religion, the one to which they adhere.94

Furthermore, it can be seen that paragraph 1, as in Article 18 of the UDHR, consists of two parts. The first part guarantees everyone’s right to freedom of thought, conscience, and religion. The second part consists of the two-pronged aspects of that right. The substance of these prongs ( forum internum and forum externum) is very similar to Article 18 of the UDHR. The freedoms mentioned in both prongs are indispensable components of the right to freedom of thought, conscience, and religion. Unlike the freedom mentioned in the second prong, the freedom in the first prong is absolute in the sense that it cannot be restricted in any way; neither in time of war, peace, or in a public emergency threatening the life of the nation. Article 4(2) of the ICCPR states that “[n]o derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision.” As a result, Boyle states that under the protection scheme of this global instrument the individual has an absolute right to freedom of thought, conscience, and religion.95 Despite the fact that Article 18 guarantees freedom of thought, conscience, and religion in the public sphere as well as in the private sphere, freedom to manifest one’s religion or belief, that is the forum externum of freedom, is not absolute and may be subject to limitations.96 However, conscientious objectors, possessing either religious or nonreligious beliefs, are protected by the article. It can therefore be concluded that no infringement will be permitted on the forum internum aspect of the freedom of thought, conscience, and religion of a conscientious objector.

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In conclusion, Article 18 guarantees the right to freedom of thought, conscience, and religion, which is a nonderogable right under Article 4(2) of the ICCPR. Therefore, conscientious objectors, possessing religious or nonreligious beliefs, are protected by the article. Nevertheless, this leaves the question of whether a conscientious objector would be exempted from military duty under law on the basis of this freedom. As highlighted above, there was limited discussion on the subject during the drafting process of Article 18 of the ICCPR but the UN mechanisms have at least attempted to provide an answer that will be explored in subsequent sections. Travaux Pr é paratoires of Article 8(3)(c)(ii) of the International Covenant on Civil and Political Rights More discussion of conscientious objection is to be found in the travaux pr éparatoires of Article 8(3)(c)(ii) than Article 18. Thus, Article 8 is the only article of the ICCPR to refer to “conscientious objection/conscientious objectors” stating that forced or compulsory labor 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.” Analysis of the travaux pr éparatoires of Article 8(3)(c)(ii) will contribute to understanding debates on the issue of conscientious objection and will highlight whether the language of this Article gives states discretion in recognizing the right to conscientious objection.97 The above quotes the final version of Article 8(3)(c)(ii) that differs from the first draft prepared by the Drafting Committee in 1948, as may be seen below: For the purposes of the article, the term “forced or compulsory labour” shall not include: a) Any service of a purely military character, or service in the case of conscientious objectors, exacted in virtue of compulsory military service laws, provided that the service of conscientious objectors be compensated with maintenance and pay not inferior to what a soldier of the lowest rank receives.98

Then, in the fifth session of the CHR in 1949, the USA submitted a proposal that contained a similar paragraph: “The term ‘forced or compulsory labour’ shall not include: a) Services pursuant to compulsory military service laws.” 99

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The UK later proposed another similar paragraph: “For the purposes of the article, the term ‘forced or compulsory labour’ shall not include: a) Any service of a purely military character or in the case of conscientious objectors exacted in virtue of compulsory military service laws.”100 This proposal was revised by the UK, who deleted the term “purely” immediately preceding “military character.”101 The revised version was adopted.102 Concerning the definition of “forced and compulsory labour,” the French delegate inserted the phrase “in countries where conscientious objection is recognised.” And then this amendment was adopted.103 It was based upon the consideration that the concept of conscientious objection was not recognized in many countries.104 Before voting for the French amendment, Mrs Roosevelt, Chairwoman and the delegate for the USA, argued that: Modern means of transportation and travel would spread concepts and traditions which, in the past, had been held by only a limited number of countries. Immigration and other factors contributed to the dissemination of ideas and the possibility of rapid development in that field would have to be taken into consideration in the drawing up of the Covenant.105

Her point was supported by the Lebanese delegate: The Commission should take into consideration the fact that the concept of the conscientious objector was not a dying tradition but the beginning of a growing movement. The idea should be included in the text although there were states which did not recognize it, as the Covenant referred to slavery although it no longer existed.106

While the USA and Lebanon interpreted the French amendment optimistically in that it seemed to allow for a future increase in the number of states permitting the right to conscientious objection, the French, instead, along with other delegates, intended to freeze proceedings on the right to conscientious objection thus taking advantage of the amendment in the opposite way.107 As the Lebanese delegate pointed out, the phrase in the French proposal, “in countries where conscientious objection is recognised,” left no doubt that it was only to apply to countries that recognized the principle.108 Therefore, “the misgivings expressed by some delegations that the proposed text might imply the

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inclusion of the concept of the conscientious objector in their national legislations was unfounded.”109 Thus, at the sixth session of the CHR in 1950, France presented the following proposal: “Any service of a military character or exacted in virtue of laws requiring compulsory national service, including services required to be done by conscientious objectors, in countries where they are recognized.”110 Afterward, the representatives of both France and the UK put forward a joint proposal: “Any service exacted by virtue of laws requiring military service, including any service required of conscientious objectors in countries where they are recognized.”111 With regard to the joint proposal, the Australian delegate suggested that the word “recognized” should be placed before “service.”112 The joint amendment of France and the UK was then withdrawn and the proposal as amended by Australia was adopted.113 France attempted to modify this proposal in 1952 as follows: “Any service of a military character or, in case of conscientious objectors in countries where conscientious objection is taken into consideration, any other national service instituted by law in place of compulsory military service.”114 This proposal was withdrawn in favor of a revised version. The revised version pronounced: “Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors.”115 The purpose of this amendment was to steer discussion away from the issue of service of a military character.116 The UK delegate objected, saying that “the idea of compulsory military service is that of compulsory national service.”117 The UK delegate persisted, suggesting that “the French delegation’s amendment to paragraph 3(c)(ii) was unsatisfactory because it might imply that a special law providing for special work for conscientious objectors would have to be adopted.”118 Despite this objection, the French amendment was adopted.119 Some delegates also paid attention to the fact that in some of the countries where conscientious objection was permitted, objectors were treated with a severity amounting to inhumane. Therefore, inclusion of a protecting clause was imperative.120 In that respect, the Lebanese delegate stated: Although he was not in sympathy, with the views of conscientious objectors, he had been impressed by their experience. In certain countries where conscientious objectors were permitted release from military obligations, they were treated in a manner inconsistent with human dignity.

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They were set to compulsory labour, were paid little or nothing, and in many cases their health or sanity broke down. If the system of conscientious objection were permitted at all, the countries permitting it must honestly accept their responsibility to grant the objectors human treatment. [ . . . ] It would be more advisable, however, to adopt the original text, with its vital stipulation that conscientious objectors should receive maintenance and pay not inferior to that of the lowest rank of soldier. Such a stipulation provided at least a minimum safeguard.121

This view was supported by a number of delegates including those from Australia, the USA, and the UK. For instance, the UK delegate could not but agree that the provision in the original text which guaranteed them a minimum living wage was of the utmost importance. If the rights of conscientious objectors were to be respected, a living wage had to be assured first of all; other aspects of the problem might be taken care of by a gradual development in various countries.122

But this view was opposed by other delegates. For instance, the Union of Soviet Socialist Republics’ (USSR) delegate believed that “the Drafting Committee’s text went too far in laying down exactly what the pay of conscientious objectors should be.”123 According to the Chilean delegate, too, the proposal was fraught with danger.124 The French delegate did not think it necessary to include in the article the provision with respect to remuneration of conscientious objectors which appeared in the original draft (of the Drafting Committee); it might make an unfortunate impression on a number of states which did not recognize the right of the individual to refuse to fight for his country.125

During the debate there was some embarrassment as regards countries that did not recognize the right to conscientious objection.126 For instance, the Belgian delegate said that “his country, which considered a conscientious objector to be guilty of a serious violation of the law, followed a less liberal policy in that regard than the United Kingdom.” He added that “the Commission’s major concern should be to ensure legal recognition of the position of the conscientious objector and of his right to fulfil his duty to his country in some way or other than by military service, without fear of punishment.”127 Finally, in spite of the above disagreements, Article 8(3) was adopted by the Third Committee.128 Article 8 as a whole was then put to a rollcall vote,129 after which it was adopted by the Third Committee.130

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In sum, those who drafted the Covenant had wished to leave space for states to interpret it at their own national level. The language of the Article therefore appears to leave States Parties some discretion as to whether they recognize the right to conscientious objection or not.131 Importantly, for the first time at least, a debate took place on whether to include the right to conscientious objection in a covenant resulting in the establishment of a permanent place for the concept. It is also significant, however, that a consensus was not reached in the travaux pr éparatoires of the ICCPR regarding the right to conscientious objection. Consequently, there was some uncertainty over the relationship between Articles 8 and 18. Only the Philippine delegate drew attention to this relationship, saying: “the provision concerning conscientious objectors might be taken up in connection with (draft) Article 16 [Article 18 in the final version], which dealt with the freedom of thought, conscience and religion.”132 Disappointingly, this remark was not put to a vote, neither was it discussed. Whether the Covenant recognizes the right to conscientious objection or not remained debatable due to the general attitudes prevailing during the period in which the Covenant was drafted.133 Article 8 was adopted at a time when conscientious objection was not used as a legitimate exercise of freedom of thought, conscience, and religion in international human rights law; in many countries the various forms of alternative service (unarmed military service and alternative civilian service) were not options for conscientious objectors. This situation was very different to the current situation.134 Those who drafted the Covenant in 1949 left the recognition of the right to conscientious objection entirely to the discretion of states by inserting the phrase “in countries where conscientious objection is recognised” into Article 8. Nevertheless, the language of Article 8(3)(c)(ii) was criticized by Eide and Mubanga-Chipoya in their 1985 report: This provision, however, is of limited relevance. It makes it clear that neither military service nor alternative service [including unarmed military service and alternative civilian service] is to be considered as forced labour. This implies that there is no general right to oppose obligatory military service on the ground that it interferes with personal freedom. But it does not settle, one way or the other, the question whether there is a basis for claiming exemption from military service on the grounds of conscientious objection.135

In their defense, the Covenant drafters of 1949, while including the concept of conscientious objection in Article 8, expressed neither rejection

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nor acceptance of the right to conscientious objection. Therefore, it cannot be inferred that the right to conscientious objection is actually rejected by the Covenant’s wording. It should be kept in mind that one of the general principles of international law is that all human rights documents are living instruments and must be interpreted according to current conditions.136 In that respect, the following sections will survey interpretations of the right to conscientious objection offered by UN human rights bodies such as the UN General Assembly, the Commission on Human Rights (presently Human Rights Council) and the Human Rights Committee (HRC). Recognition of the Right to Conscientious Objection to Military Service by the United Nations General Assembly, the Commission on Human Rights and the Human Rights Council The United Nations General Assembly UN General Assembly (GA) resolution no. 33/165 gave the green light to a form of selective conscientious objection when the GA supported those in South Africa who, rejecting any involvement in the enforcement of apartheid, refused to serve in the security forces.137 In this resolution the GA recognized “the right of all persons to refuse service in military or police forces which are used to enforce apartheid.”138 Furthermore, the GA announced that “Member States to grant asylum or safe transit to another State, in the spirit of the Declaration on Territorial Asylum, to persons compelled to leave their country of nationality solely because of a conscientious objection to assisting in the enforcement of apartheid through service in military or police forces.”139 The GA also touched upon this issue in Resolution no. 35/206B and 39/72A.140 For example, in the Resolution no. 35/206B, the GA invited “all Governments and organizations to assist, in consultation with the national liberation movement, persons compelled to leave South Africa because of their objection, on the ground of conscience, to serving in the military or police force of the apartheid regime.”141 The Commission on Human Rights Conscientious objection appeared on the agenda of the CHR for the first time at the twenty-seventh session in 1971 when delegates from Austria, Chile, the Netherlands, New Zealand, and Uruguay presented a draft resolution calling on all Member States to recognize the right to conscientious objection in their domestic law on account of the

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increase in interest among young people.142 Furthermore, these countries requested the Secretary-General to present a report on the subject to the CHR. This proposal was sympathetically received by the UK and several other countries.143 For instance, the UK delegate stressed that there was an urgent need for the right to conscientious objection to be recognized, saying: A number of countries, however, were beginning to recognise the right to conscientious objection and to agree that those who refused to bear arms could serve the community in another way . . . Perhaps it might be possible to organize some kind of service under civilian control which would give conscientious objectors an opportunity to serve mankind under the auspices of the United Nations. By adopting a Resolution on the recognition of that right, the CHR would demonstrate that it did not confine itself to condemning war but it was also capable of taking a positive decision in support of freedom of conscience and of the ideals of many young people who wanted to serve humanity and not war.144

However, the delegates of countries with compulsory military service said that the right to conscientious objection should not be recognized, arguing that one’s obligations to one’s country and society are paramount. These countries stressed that the right to conscientious objection should be left to the discretion of each country.145 Despite the objections, the resolution was passed after amendments had been made to the original draft.146 In 1980, the CHR adopted a resolution requesting “the Secretary General to report on the information provided by the Member States to the Commission at its thirty-seventh session with a view to further consideration of this question at that session.”147 In 1981, the CHR also passed a resolution requesting the Sub-Commission on the Prevention of Discrimination and Protection of Minorities to prepare a report regarding the issue of conscientious objection.148 Then in 1983 the final report, prepared by Eide and MubangoChipoya, requested the General Assembly to recommend that states should recognize in their domestic law those who do not want to perform military service for religious, ethical, moral, humanitarian, or similar motives and exempt them from military service.149 In addition, the report advocated that the right to conscientious objection be accorded to those whose conscience forbids them to take part in armed service under all circumstances and that the same right be recognized for those who would be compelled to sustain apartheid, participate in genocide, intervene illegally, or utilize arms of mass destruction or weapons.150

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The report also made some recommendations on alternative service. It summarizes categories of alternative service as follows: a) noncombatant roles in the armed forces; b) social service/development service; c) peace oriented service.151 It can be seen from the first category that noncombatant roles, also called unarmed military service, are deemed to be alternative service. Moreover, the report recommended that states should provide alternative service that is not significantly longer than military service so that it would not be punitive in nature.152 In 1987, the CHR adopted a resolution (1987/46) establishing, for the first time, the right to conscientious objection as a part of the right to freedom of thought, conscience, and religion already recognized by the UDHR and the ICCPR.153 The resolution also urged reluctant states to recognize conscientious objection.154 The CHR acknowledged that conscientious objection derives from the workings of conscience and profound convictions based on religion, ethical, moral, or similar motives.155 The CHR further recommended that countries with compulsory military service recognize various forms of alternative service. It is understood from this recommendation that unarmed military service and civilian service would be included within alternative service. Nearly every Western country (26 states) voted in favor of the resolution, however, 14 states including China and the USSR abstained either because, in their opinion, military service is an honor and a duty for all citizens, or because compulsory military service was required by their national constitutions. Iraq and Mozambique voted against the Resolution on the grounds that continuing conf licts with Iran and South Africa respectively prevented them from supporting it.156 For people applying for conscientious objector status this resolution was the first clear message from the international community in their favor and, as such, has become an essential tool for them.157 Thus, the inf luence of the CHR 1987 resolution is visible in the resolution on El Salvador, passed in the same year by the Sub-Commission on Prevention of Discrimination and Protection of Minorities in which the Sub-Commission highlights the importance of the CHR Resolution 1987/46 in terms of recognizing conscientious objection, given the government of El Salvador’s draconian recruitment policies.158 In the wake of further submissions to the Secretary General by various countries and NGOs, the CHR passed additional resolutions.159 In resolution 1989/59, the CHR recognizes for the first time: the right of everyone to have conscientious objections to military service as a legitimate exercise of the right of freedom of thought, conscience

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and religion as laid down in Article 18 of the Universal Declaration of Human Rights as well as Article 18 of the International Covenant on Civil and Political Rights.160

This resolution also states that conscientious objection stems from principles and convictions due to conscience and may be based on religious or similar grounds. Some differences in the resolutions passed by the CHR in 1987 and 1989 are noteworthy: in 1987 the CHR appealed to Member States to recognize the right to conscientious objection. However, in 1989 the CHR itself recognized this right. Nevertheless, the position of selective conscientious objectors was not directly mentioned in either resolution and thus, remained unclear.161 The CHR subsequently adopted Resolution 1993/84 in which the CHR acknowledged that “conscientious objection to military service derives from principles and reasons of conscience, including profound convictions, arising from religious, ethical or similar motives.”162 The CHR also continued to insist that states persisting with compulsory military service should provide for different forms of alternative service. It also stipulated that the alternative service offered should be in the public interest, should not be punitive and should be of a noncombatant or civil character.163 Significantly, with regard to the alternative service, both unarmed military service and civilian service are mentioned within the scope of the term “alternative service.” This is no different to previous resolutions. Moreover, as Brett states that the word “punitive” refers to the form of service and the working conditions involved, in addition to the length of alternative service.164 The CHR Resolution 1995/83 pronounced that the right to conscientious objection is a legitimate exercise of the right to freedom of thought, conscience, and religion, as enshrined in Articles 18 of the UDHR and ICCPR.165 On the one hand, Resolution 1995/83 demonstrates greater progress than Resolution 1993/84, as evidenced by the following five points. First, the Resolution cited the origins of the right to conscientious objection to be Article 18 of the ICCPR. It also makes reference to General Comment no. 22 (1993) of the HRC that will be explained in the following section of this chapter. This Comment is an important reference in itself pointing to the HRC’s recognition of the right to conscientious objection as deriving from Article 18. Secondly, humanitarian motives as a basis for conscientious objection were included in the resolution.166 Thirdly, the phrase “military service” replaced “compulsory military

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service,” which had been used in the previous resolution. The significance of this is that the right to conscientious objection was also recognized for those who perform military service on a professional basis. The fourth difference is that the resolution refers to Article 14 of the UDHR that recognizes the right of anyone to seek and enjoy asylum from persecution.167 It thus ensured that in the event of conscientious objectors being subjected to persecution they should be able to apply for refugee status. The fifth difference is that paragraph 4 stipulates there should be no discrimination between conscientious objectors based on the origins of their belief.168 On the other hand, the increasing acceptance of the right to conscientious objection by the CHR was itself challenged. In 1998, the Permanent Representative from Singapore addressed a letter to the Chairman of the CHR which, cosigned by other ten states (China, Egypt, Iran, Jordan, Lebanon, Myanmar, Sudan, Syria, Thailand, and Vietnam), communicated the signatories opposition to the right to conscientious objection. The letter included the following: [...] 2. National defense is a fundamental sovereign right under international law. Where individual beliefs or actions run counter to such a right, the right of a state to preserve the security of the nation must prevail. Article 29 of the Universal Declaration of Human Rights as well as Article 18 of the International Covenant on Civil and Political Rights recognizes that the exercise of the rights and freedoms of the individual is subject to the necessity of ensuring public order and the general welfare of the society. 3. Where a state has established a compulsory military service system under which every citizen is legally required to serve military service, it is then a question of equality before the law. Allowing any group for whatever reasons to be excluded from compulsory military service would compromise the universality of the application of the law.169 Despite the opinions expressed in the above letter, the CHR adopted Resolution 1998/77 that confirmed the right of anyone to conscientiously object to military service as a legitimate exercise of the right to freedom of thought, conscience, and religion, as laid down in Articles 18 of the UDHR and ICCPR.170 In addition, it asserted that conscientious objection derives from principles and reasons of conscience, including profound convictions, arising from religious, moral, ethical, humanitarian, or similar motives.171

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The CHR also welcomed the situation at that time in which some states accepted as valid and without inquiry any claims of conscientious objection.172 In addition, the CHR underlined that “persons performing military service may develop conscientious objection.”173 This means that there is no time limit for conscientious objectors to apply for conscientious objector status. Apart from dealing with the recognition of and the grounds for conscientious objection, Resolution 1998/77 was extended to focus on other issues in the same connection. This included alternative service (including unarmed military service and alternative civilian service), decision-making bodies granting the right to conscientious objection, and repeated punishment for failure to perform military service.174 The resolution also stressed both the importance of access to information regarding the right to conscientious objection and the methods by which conscientious objector status could be acquired. The four main difficulties in this regard lay in concerns about who provided the information, who received it, access to the information and the quality of that information.175 In addition, the resolution announced that there must be no discrimination against conscientious objectors, in law nor in practice, as regards terms and conditions of service or any civil, political, social, or cultural rights.176 Moreover, the resolution called on states to accept applications for political asylum from conscientious objectors forced to leave their countries on account of fear of persecution for refusing to perform military service where no provision, or insufficient provision, for conscientious objection existed.177 Before the adoption of Resolution 1998/77, an objection was raised by the Republic of Korea pointing out that “the government of the Republic of Korea had always attached great importance to the right of freedom of conscience and religion but, at the same time, it recognized its sovereign right and solemn responsibility to defend its territory and maintain public order.”178 The Korean delegation continued: the draft resolution suggested an alternative service system [including unarmed military service and alternative civilian service], but it would be impractical and not even feasible for some countries in which the burden of [armed] military service was very great and the universality of the application of the law strongly upheld by the people.179

These objections did not prevent Resolution 1998/77 from being adopted, however. In the two resolutions adopted in 2000 and 2002

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(2000/34 and 2002/45),180 the CHR called upon states to review their current laws and practices in relation to conscientious objection in the light of its resolution 1998/77. In addition, both the later resolutions carried a request to the Office of the United Nations High Commissioner for Human Rights (OHCHR) for a report to be prepared regarding the right to conscientious objection and for the provision of various forms of alternative service (unarmed military service and alternative civilian service), and to obtain relevant information from governments, human rights organizations, specialist agencies, and relevant intergovernmental and NGOs in order to submit such a report. Following these resolutions, the OHCHR submitted two separate reports in 2002 and in 2004 titled “Conscientious objection to military service.”181 In 2004, the Croatian delegate introduced a draft resolution on behalf of its 34 sponsors calling on states to review their domestic law and practice regarding the right to conscientious objection to make relevant provision, taking into consideration the OHCHR’s 2004 report.182 It was adopted becoming Resolution no. 2004/35. The CHR inserted an encouragement to “States, as part of post-conf lict peace-building, to consider granting, and effectively implementing, amnesties and restitutions of rights, in law and practice, for those who had refused to undertake military service on grounds of conscientious objection.”183 In 2006, the biennial OHCHR report on conscientious objection was submitted to the CHR in accordance with its Resolution 2004/35.184 The Report recommended that states which had not yet done so should be encouraged to recognize the right to conscientious objection, and to give full effect to this right, including for professional soldiers.185 In addition, the report recommended that states review their domestic law and practice in order to ensure that conscientious objection is not restricted to certain religious groups. The Report underlined that states should, instead, broaden their scope to include other religious beliefs and nonreligious secular convictions.186 The same Report also recommended that states be required to provide unarmed military service or alternative civilian service of a nonpunitive nature in the light of CHR resolutions 1993/84 and 1998/77, and of the Committee of Ministers of the Council of Europe Recommendation R (87)8.187 As in its previous reports, the OHCHR, like the CHR, in discussing different forms of alternative service (unarmed military service and alternative civilial service), stressed the need for them to be noncombatant or civilian. The CHR did not produce a new resolution in line with the abovementioned report as, in 2006, the body was replaced by the Human

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Rights Council. However, it is clear that from 1971 when the CHR first took an interest in the right to conscientious objection until 2006, it played an important part in developing the content of this right and it made many calls on its Member States to recognize the right openly. The Human Rights Council The Human Rights Council (hereafter “the Council”) was created by the UN General Assembly via Resolution no. 60/251 on March 15, 2006.188 The Council replaced the CHR. One of the differences was that the Council was expected to exert more oversight, monitoring the human rights records of all States on a four-yearly basis (Universal Periodic Review (UPR)).189 The right to conscientious objection has been the subject of reports by the Working Group of the UPR on Colombia,190 Israel,191 Turkmenistan,192 and Turkey.193 The Human Rights Council tends to focus on the implementation of the previous review’s outcomes during the next cycle.194 The outcomes of the UPR should be implemented primarily by the State concerned, which is further obliged to submit reports to the Human Rights Council regarding its implementation of these outcomes during the second cycle 2012–2016.195 When considering UPR conclusions, the Council will decide whether any follow-up action is required.196 In the event of a state’s persisting in noncooperation with the review mechanism, and after all efforts to encourage cooperation have failed, the Council may take appropriate action.197 The Human Rights Committee—An Interpretation of the Right to Conscientious Objection to Military Service The HRC was established as the ICCPR’s monitoring body in accordance with Article 28(1) of the Covenant. To date, the HRC has dealt with the right to conscientious objection in a General Comment, in numerous Concluding Observations on State reports and in its individual communications.198 General Comment no. 22 In 1993, the HRC issued General Comment no. 22 on the right to freedom of thought, conscience, and religion (ICCPR, Article 18)199 focusing in particular on conscientious objection. One of the Comment’s drafters, Vojin Dimitrijevic, pointed out that the number of states recognizing the right to conscientious objection had gradually begun to rise, indicating the need for the recognition of this right. 200

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General Comment no. 22 constituted a breakthrough for various reasons. First, the HRC decided that it was time to recognize conscientious objection as a right under Article 18 of the ICCPR. Paragraph 11 of the General Comment no. 22 states: Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under Article 18. In response to such claims, a growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service. The Covenant does not explicitly refer to a right to conscientious objection, but the Committee [HRC] believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conf lict with the freedom of conscience and the right to manifest one’s religion or belief. When this right is recognised by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service. The Committee [HRC] invites States Parties to report on the conditions under which persons can be exempted from military service on the basis of their rights under article 18 and on the nature and length of alternative national service.

The second reason for considering General Comment 22 to have broken new ground is that it allows for conscientious objection to be based solely on belief without restricting the grounds to religiously inspired belief. This wider freedom is evidenced in the General Comment: “the obligation to use lethal force may seriously conf lict with the freedom of conscience and the right to manifest one’s religion or belief.” 201 Moreover, in declaring that “Article 18 protects theistic, nontheistic 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” 202 the General Comment ensures that the terms “religion” and “belief ” cover the widest possible range. Thus, a religious standpoint is not necessarily the only valid basis for conscientious objection. 203 Finally, the Comment states that a person’s freedom of conscience and right to manifest their religion or belief may be contravened by an obligation to use lethal force. There had been debate on the meaning of “lethal force”: Mr. Sadi (Jordan) suggested that it meant the use of “fire arms,” while Mr. Herndl (Austria) proposed the formulation “the

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obligation to serve in armed forces and consequently to be under the obligation to use arms.” 204 Mr. Wennergren (Sweden) suggested replacing this phrase with “the obligation to deprive other persons of their lives” based on Article 6 of the ICCPR (right to life). 205 What emerges from these debates is that conscientious objection is not restricted to those who reject the use of firearms, since “lethal force” refers to any aggressive act that causes death. At the same time, the HRC warned that in allowing conscientious objection to killing, the phrase “lethal force” should not be used to imply that performance of military service is on a par with murder. 206 Hammer argues that in this General Comment the HRC has recognized the right to selective conscientious objection, because the rejection of “lethal force” is concerned with the kind of warfare in question, and not merely the bearing of arms. An individual may object to using certain weapons, such as nuclear or chemical weapons, while not rejecting the idea of handling a gun. 207 Mrs Higgins (the UK) also criticised the General Comment saying that: The paragraph did not seem to provide clear guidelines for States Parties on their obligation to grant the right to conscientious objection under Article 18, but merely indicated that it was possible to derive such a right from that article and invited States Parties which did so to inform the Committee [HRC] accordingly. 208

Despite this criticism, the comment was accepted by the HRC. This comment also changed the HRC’s jurisprudence in cases concerning the right to conscientious objection and its concluding observations as will be explained below. Concluding Observations and Reports Submitted by States Parties The HRC elaborated on its position with regard to conscientious objection in its concluding observations, adopted following the examination of States Parties’ reports. Up to October 2013, the HRC referred to conscientious objection in at least 45 observations. 209 Areas of general concern in relation to conscientious objection appear to have been threefold: recognition of the right to conscientious objection, the grounds on which conscientious exemption from military service may be granted and the procedure for obtaining such exemption in war and peace time. 210 In one observation the HRC drew attention to the need for

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countries that had not, until then, recognized the right to conscientious objection to take all necessary measures to do so. 211 In addition, the HRC has underlined the necessity for broadening the grounds on which the right to conscientious objection is recognized. For example, the HRC’s Concluding Observations to the Ukraine charged it to “extend the right to conscientious objection against mandatory military service to persons who hold non-religious beliefs grounded in conscience, as well as beliefs grounded in all religions.” 212 The various states’ arrangements for alternative civilian service are frequently reviewed. Aspects causing the HRC most concern are the following: the conditions governing alternative civilian service; its duration; its civil nature; the rights accorded to those who carry their objection so far as to refuse to do alternative civilian service; the availability of social rights and benefits to those in the military compared to those in alternative civilian service; and repeated punishment for refusing to carry out military service. 213 Furthermore, the fact that there is no independent decisionmaking process is viewed by the HRC severely, 214 especially in the light of discrimination against and repeated punishment of conscientious objectors. 215 In recent years, the HRC has specifically repeated recommendations to states that they recognize the right to conscientious objection without discrimination. 216 The HRC’s observations regarding the right to conscientious objection are becoming more precise year by year. 217 Observations made in the 1990s had the character of cursory remarks with the absence of the right to conscientious objection simply listed among other Covenant rights not protected. 218 However, in recent years, in addition to recognizing the right to conscientious objection, HRC observations have also encouraged states to establish an alternative civilian service without discrimination. 219 Jurisprudence As a quasi-judicial body, the HRC examines communications pertaining to whether rights and freedoms protected by the ICCPR have been violated by States Parties. 220 Although the HRC’s views are not legally binding on the authors (applicants to the HRC) nor on ICCPR States Parties, it recommends that the measures taken by the State concerned should comply with the Covenant, and it monitors the execution of its recommendations. 221 In the 1980s the HRC began to receive individual communications related to conscientious objection. The HRC was thus

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able to evaluate its understanding on the right to conscientious objection throughout these communications. Early Communications The first case examined by the HRC was Paavo Muhonen v. Finland. 222 Muhonen asserted that he was a conscientious objector to military service and claimed that the Finnish authorities had refused to acknowledge his ethical beliefs thereby violating his right to freedom of conscience under Article 18(1) of the ICCPR. 223 On February 2, 1981 the Finnish Military Service Examining Board, in its defense, stated the following: Mr Muhonen who, as may be believed on the basis of a conversation which has now taken place, has an ethical conviction within the meaning of the Unarmed and Alternative Service Act (132/69) which prevents him from doing armed or unarmed service in the armed forces and who, having already reached the age of 30, may not be called up for service. 224

In the case of Mr. Muhonen the Board was not convinced by the applicant regarding his ethical beliefs. The HRC, after due consideration, believed that the Examining Board’s decision was a sufficient explanation and that there was therefore no further question of a violation of Article 18(1). Thus, in this case, the HRC was not required to reach a view as to whether Article 18(1) recognized the right to conscientious objection. 225 In a subsequent communication, L.T.K v. Finland , 226 the author claimed that he had been prosecuted for his refusal to perform military service. 227 The Military Service Examining Board, on October 22, 1982, had decided against him, finding that he must undertake armed service as he had not managed to convince the Board that his moral and ethical beliefs impeded him from doing so. 228 The author brought his communication before the HRC claiming a violation of Articles 18 and 19 of the ICCPR. 229 The HRC underlined that the right to conscientious objection was not protected by either Articles 18 or 19 of the ICCPR. 230 Especially when Article 8(3)(c)(ii) of the ICCPR was taken into account, argued the HRC, Articles 18 or 19 could not be construed as implying this right. 231 Having studied the communication, the HRC found that there had not been a violation of any ICCPR provision in the light of the facts submitted by the author. 232 The HRC also found that the applicant had made no claim regarding procedural irregularities in his case, neither

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had he complained that his sentence contravened law. 233 It consequently pronounced the communication inadmissible. 234 In sum, in its earlier communications, the HRC affirmed unequivocally that the right to conscientious objection was not recognized under the Covenant either because it was not included specifically, or because of the reference to conscientious objection included in Article 8(3)(c)(ii) that entitles states to decide unilaterally on whether to recognize this right. At that time, it should be remembered that the right to conscientious objection was recognized in only a small number of countries and this fact may have been inf luential in the HRC’s decision-making process. On the other hand, its interpretation of Article 8(3)(c)(ii) has been criticized by many scholars who point out that the Article does not constitute an obstacle to the right to conscientious objection. 235 On the HRC’s rationale, Takemura made the following observation: It is not entirely clear whether the Human Rights Committee had thought the provision of safeguards for conscientious objection was inappropriate under this particular provision or the entire International Covenant on Civil and Political Rights. From the earlier negative attitude of the Human Rights Committee toward the right to conscientious objection one can assume that it did not want to go into detail in an area where State practice is not consistent and it touches upon national security issues. 236

Discrimination Challenges Despite the HRC’s concerns about the right to conscientious objection, it began to analyze the wide range of reasons given in the past by conscientious objectors in their communications. First, the HRC dealt with the case of alternative civilian service being of longer duration than military service and whether or not this differing treatment amounts to a violation of Article 26 of the ICCPR. The HRC maintained its former approach as to the length of alternative civilian and military service. For instance, in Aapo Jä rvinen v. Finland of 1990, 237 the author considered himself the victim of discrimination, since individuals who chose alternative civilian service under a new act (the Act on the Temporary Amendment to the Act on Unarmed and Civilian Service—No. 647/85) were required to serve for 16 months, whereas the term of military service was only eight months. Before this new act came into force, the duration of alternative civilian service had been 12 months of government civilian service. 238

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The question arose as to whether or not the extended length of alternative civilian service was unreasonable and punitive. The HRC expressed the fact that the right to conscientious objection is not recognized in the Covenant need be no obstacle to this question being asked; it was considered sufficient that the Covenant, in Article 26, prohibits discrimination to each and every citizen of Member States. 239 The conclusion reached was that any differentiation between military service and alternative civilian service must be based on reasonable and objective criteria. 240 The HRC realized that genuine conscientious objectors who agreed to perform civilian service would be adversely affected by legislative differentiation of the lengths of service. 241 Upon investigation into the reasoning behind the law, the HRC discovered that the motive for this change had been solely practical: to render the administration of alternative civilian service more straightforward. It was not therefore calculated to be discriminatory. 242 The HRC believed that the Act eased the situation not only for the State but also for conscientious objectors in that evidence of objectors’ willingness to undergo a lengthier period of service amounted to a simple demonstration of the degree of their conviction, and removed the onus of proving one’s beliefs at an examination. Furthermore, it was expected that alternative civilian service would attract a greater variety of applicants. 243 The HRC concluded by rejecting the accusation that the longer alternative civilian service period was either unreasonable or punitive. 244 It did not therefore find a violation of Article 26 of the ICCPR. 245 Instead, the HRC decided differently in the case of Fr é d é ric Foin v. France in 1999. 246 In this communication the HRC endeavored to answer the question of whether “the requirement, under French law, of a length of 24 months for national alternative service, rather than 12 months for military service, is discriminatory and violates the principle of equality before the law and equal protection of the law set forth in article 26 of the Covenant.” 247 The HRC held in the Foin case that not all differentiation of treatment is prohibited by Article 26, but added that it must be based on reasonable and objective criteria. The HRC admitted that legal provision may be made to establish differences in law and practice between military and alternative civilian services, as special training might be required necessitating a longer duration of service. However, in the case in question, the HRC was not convinced by the State Party’s argument

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that longer alternative civilian service was necessary to test the sincerity of an individual’s convictions. The HRC therefore found that there had been a violation of Article 26, as the author had suffered discrimination on the basis of conscience. 248 The communications of Richard Maille v. France 249 and Marc Veiner and Paul Nicolas v. France 250 had the same outcome as the Fr é d é ric Foin v. France case. It can be seen that, from the Aapo Jä rvinen communication of 1990 regarding the different lengths of military and alternative civilian services up to the Foin communication of 1999 where discrimination was found, the HRC underwent an evolutionary process. The Foin communication clarified in precisely which situations legislation was not to be based on practical considerations. In addition, the HRC in the Foin communication pronounced unambiguously that testing the conscience by making alternative civilian service longer could not be termed a practical consideration and that it failed to comply with reasonable and objective criteria. In Godefriedus Maria Brinkhof v. the Netherlands, 251 the process of recognizing the right to conscientious objection initiated a discussion on the subject of equality. 252 In this case, the author was a total objector who objected to performing military service as well as to substituting it with alternative (civilian) service. 253 Having refused to present himself for service, he was arrested and taken to barracks. Once there, he declined to obey orders on the grounds of his pacifist beliefs. 254 On August 26, 1987, the author was sentenced to 12 months’ imprisonment and was dismissed from military service in accordance with Articles 23 and 114 of the Military Penal Code. 255 The author then claimed that Jehovah’s Witnesses were exempted from prosecution under the Military Penal Code but that other conscientious objectors, like himself, were held fully liable and that therefore Article 26 of the ICCPR had been violated. 256 The author was led to make this complaint because of what he considered to be blatant discrimination in favor of Jehovah’s Witnesses who, by the Supreme Military Court’s verdict, were automatically exempted from military service and could not, therefore, offend under the Military Penal Code. 257 In its defense to the HRC, the Dutch state underlined that Jehovah’s Witnesses had been exempted from military service since 1974 on account of powerful evidence of religious convictions as grounds for conscientious objection. They therefore qualified for exemption automatically. The Dutch state intimated that, although Jehovah’s Witnesses were exempted, conscientious objectors of other persuasions were not

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precluded from making a claim under the Act on Conscientious Objection to Military Service. 258 The HRC held that in the instant case, the Committee [HRC] considers that the author has not shown that his convictions as a pacifist are incompatible with the system of substitute service in the Netherlands or that the privileged treatment accorded to Jehovah’s Witnesses adversely affected his rights as a conscientious objector against military service. 259

With this reasoning, the HRC found that Brinkhof was not a victim of a violation of Article 26 of the ICCPR. 260 However, it specified that those who do not want to perform military nor alternative civilian service should be given equal treatment, adding that states should amend their regulations and practices in order to prevent discrimination. 261 In this communication the HRC reiterated, with reference to General Comment no. 22, that when states recognize the right to conscientious objection they should not discriminate between conscientious objectors based on their individual beliefs. In this context the HRC stated that it was unreasonable to exempt only one group of conscientious objectors while ruling out exemption for all others. 262 In summary, while the HRC views had not initially recognized the right to conscientious objection within the framework of Article 8(3)(c) (ii), it began to change its stance following the publication of General Comment no. 22 of 1993. However, the change of opinion began in connection with the less complicated issues concerning the right. The early communications were not really about the right to conscientious objection itself, but rather about the prohibition of discrimination in the context of conscientious objection. Thus, at the outset, matters concerning differing lengths of military and alternative civilian services were addressed. Subsequently the issue examined was whether variations in treatment between religious or nonreligious conscientious objectors constituted discrimination under Article 26 of the ICCPR. Consequently, the HRC declared that the right to conscientious objection, in those countries where it was permitted, should be recognized equally for all objectors. Moreover, since the Foin communication, the HRC has consistently averred that any differentiation in the length of service between military and alternative civilian services must be based on reasonable and objective criteria. Total Objection Toward the end of the 1990s, the HRC articulated its views on whether the right to freedom of conscience includes the right to reject all legal

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obligations, and whether it ensures immunity from prosecution occasioned by such rejection. In the 1999 Paul Westerman v. the Netherlands case, the author was a total objector. 263 Although he had applied to be recognized as a total conscientious objector, the Dutch authorities had rejected the request and sent him to his military unit. 264 When ordered by a military officer to put on a uniform the author refused, arguing that he opposed military service in toto. 265 Westerman continued to disobey all military orders despite being informed that, under Article 114 of the Wetboek van Militaire Strafrecht (Military Penal Code), insubordination was a criminal offence. 266 On January 1, 1991, a new Article 139 of the Military Penal Code, replaced Article 114, stating that “military [personnel] who refuses or intentionally fails to perform any duty, of whatever nature, will be punished with a prison sentence of maximum two years or a fine in the fourth category.” 267 On Westerman’s behalf Counsel argued that He [Westerman] is of the opinion that the nature of the military is in conf lict with the moral destination of man. The failure of the courts to treat the author’s conscientious objections against military service as a justification for his refusal to perform military service, and to acquit the author, is said to constitute a violation of Article 18 of the Covenant. 268

On Westerman’s claim, the HRC found that the right to freedom of conscience did not give the right to refuse all obligations imposed by law, nor did it provide immunity from criminal liability resulting from this refusal. Nevertheless, the HRC referred to its General Comment no. 22, which stated that the right to conscientious objection has its origins in Article 18. 269 Moreover, it emphasized that, as underlined in its Comment, the obligation on a serviceman to use lethal force created a serious clash with freedom of conscience and the individual’s right to manifest his religion or belief. 270 The HRC also maintained that according to Dutch law, conscientious objection was, indeed, recognized for those who rejected the use of violence. 271 The author, Westerman, had applied to be recognized as a conscientious objector but the Defense Minister demurred, arguing that the reasons given by the author, that as a member of the military he would not be able to take decisions for himself, were not valid grounds for recognition. This decision was upheld on appeal by the Administrative Disputes Division of the Council of State. 272 It was the HRC’s task to decide whether the author’s right to freedom of conscience had been violated by coercion to perform military service. Despite five HRC members finding that there had been a violation of

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Article 18 of the ICCPR, 273 the majority of HRC members found that the State party had considered the author’s claim in accordance with its legal provisions, and that these provisions were in line with Article 18. The HRC was not convinced that the arguments of the author regarding his inability, as a soldier, to take decisions for himself represented the “insurmountable objection of conscience to any form of military service” required by paragraph 5 of the HRC’s General Comment no. 22. Finally, the HRC emphasized that the circumstances of the case did not impel it to replace the state’s evaluation of the matter with its own. The HRC did not therefore find a violation. 274 In conclusion, on the one hand, the HRC agreed with the argument in favor of Westerman saying that for a State to force conscientious objectors to participate in armed conf lict constituted a violation of Article 18 of the ICCPR. 275 On the other hand, it believed that the right to freedom of conscience does not include the right to reject all legal obligations, nor does it ensure immunity from prosecution originating from this rejection. 276 With this pronouncement, it looks as though the HRC was seeking to establish the boundaries of freedom of conscience. Recent Communications Communications concerning the right to conscientious objection continue to occupy the agenda of the HRC. Four landmark communications from the last seven years will be explored below;277 the first of these being from 2006. The Yeo-Bum Yoon and Myung-Jin Choi v. the Republic of Korea case, decided in November 2006, involved an objection by two Jehovah’s Witnesses to perform military service;278 Yoon and Choi had been charged and sentenced to one-and-a-half years imprisonment.279 The majority of HRC members decided that the right to conscientious objection is protected in the case of the manifestation of one’s religion or belief came within the parameters of Article 18(1). 280 The HRC found that lack of provision of an alternative to compulsory military service had led to the authors being prosecuted and imprisoned and that, consequently, their rights under Article 18 had been violated. 281 The HRC decided that any restriction of the right to manifest one’s religion or belief had to be in accordance with Article 18(3), and that the Republic of Korea had not shown that the restrictions imposed were in accordance with that paragraph. 282 As a result, the HRC found a violation of Article 18(1) of the ICCPR, stating the authors’ refusal to be drafted for compulsory military service was a direct expression of their religious beliefs which, it is uncontested, were

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genuinely held and that the authors’ subsequent conviction and sentence amounted to an infringement of their freedom of conscience and a restriction on their ability to manifest their religion or belief. 283

There were two dissenting opinions to the finding. While agreeing with the majority view that there had been a violation of Article 18(1), Mr. Solari-Yrigoyen introduced a proviso saying that conscientious objection is a fundamental human right whereby any person whose religion or beliefs are not compatible with military service must be exempted from the obligation to serve. He added that coercion should not be exercised as it would constitute an infringement of this right, and that since the State party did not recognize the right, the communication in question should be evaluated according to paragraph 1 of Article 18 rather than to paragraph 3. 284 Mr. Solari-Yrigoyen stated that “[t]he mention of freedom to manifest one’s religion or belief in Article 18, paragraph 3, is a reference to the freedom to manifest that religion or belief in public, not to recognition of the right itself, which is protected by paragraph 1.” 285 Another dissenting opinion was written by Prof. Wedgwood, who believed that “she was unable to conclude that the right to refrain from mandatory military service is strictly required by the terms of the Covenant, as a matter of law.” 286 She also asserted that [A]rticle 18 does not suggest that a person motivated by religious belief has a protected right to withdraw from the otherwise legitimate requirements of a shared society. For example, citizens cannot refrain from paying taxes, even where they have conscientious objections to state activities. In its present interpretation of article 18, apparently differentiating military service from other state obligations, the HRC cites no evidence from the Covenant’s negotiating history to suggest that this was contemplated. 287

After making these criticisms of the HRC’s majority opinion, Prof. Wedgwood also dissented regarding other matters. In her opinion, the HRC had expressed in the General Comment no. 22 of 1993 that the right to conscientious objection can be derived from Article 18; however, the Committee had never said in its jurisprudence that such a “derivation” emanated from the Covenant. Moreover, Prof. Wedgwood claimed that Article 8(3)(c)(ii) constituted a further obstacle to the HRC’s view. 288 Notwithstanding these two dissenting opinions the HRC, as an international body, had for the first time provided a definite response to

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the objections to conscientious objection. 289 This response was highly significant for international human rights law on the right to conscientious objection. However, the HRC view should not be understood to mean that all problems relating to the right to conscientious objection had been resolved. For instance, this view did not touch upon the persons who became conscientious objectors after joining the army or the situation of the persons who became conscientious objectors for nonreligious reasons. Nevertheless, the HRC’s concluding observations and its General Comment no. 22 have affirmed that one can become a conscientious objector after joining the army and that no discrimination is permissible between objectors with religious and nonreligious grounds. 290 The HRC reached the same view in 2010 regarding another communication. Here, the Korean authors had refused to be drafted within the prescribed period of time. They were convicted and sentenced by a District Court in the Republic of Korea to one-and-a-half years imprisonment. 291 They claimed to be victims of a violation Article 18(1) of the ICCPR. 292 Making reference to previous views in similar communications, the HRC reached the conclusion that the authors’ conviction and sentence constituted a restriction of their ability to manifest their religion or belief as the State party had not been able to show that restriction was necessary according to the terms of Article 18(3). 293 Despite the dissenting opinions of four years earlier, this time the view was unanimous, demonstrating that the HRC had reached a united view regarding the right to conscientious objection. The HRC altered its view somewhat in 2011 when faced with a class action of one hundred South Korean applicants claiming that their freedom of thought, conscience, and religion had been violated in accordance with Article 18(1) of the ICCPR. 294 The applicants, all Jehovah’s Witnesses, maintained that they had been sentenced to 18 months imprisonment for refusing to perform military service because of their religious belief. 295 The HRC found that, as in the other communications, Article 18(1) had been violated. 296 However, whereas the HRC had examined previous communications under Article 18(3), in this communication the HRC changed its language, examining the case with reference to paragraph 1. Its reasoning was therefore different. The HRC stated the following: In the present cases, the Committee [HRC] considers that the authors’ refusal to be drafted for compulsory military service derives from their

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religious beliefs which, it is uncontested, were genuinely held and that the authors’ subsequent conviction and sentence amounted to an infringement of their freedom of conscience, in breach of Article 18, paragraph 1 of the Covenant. Repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibit the use of arms, is incompatible with Article 18, paragraph 1 of the Covenant. 297

Three HRC members opposed the majority opinion and submitted a minority report. These members agreed that Article 18(1) had, indeed, been violated, but they had different rationales, saying that the reasoning process applied in previous communications should also have been applied in this communication. While the majority of the HRC emphasized the forum internum aspect of the freedom of thought, conscience, and religion, the three minority members stressed the forum externum aspect, as in previous communications. 298 Thus, the majority found that forcing people to perform military service constituted a violation of their conscience, whereas the minority perceived the right to conscientious objection as a manifestation of this freedom of thought, conscience, and religion. In that respect, the minority specified that if a conviction and sentence for refusal to serve amounted to an infringement of one’s manifestation of religion or belief, that infringement must be shown to be necessary according to the terms of Article 18(3). However, the minority reasoned that, in this case, these convictions and sentences were not considered necessary. The significance of the HRC’s focus on the forum internum lies in the guarantee that even the state may not infringe a person’s inner being, whereas it is possible for states to intervene in the forum externum sphere of this right. In its March 2012 meeting, the HRC reached the same view regarding the communication brought by two conscientious objectors from Turkey. 299 The authors, Cenk Atasoy and Arda Sarkut, refused to perform military service because of their religious belief as Jehovah’s Witnesses. The authors claimed to be victims of a violation of Article 18(1) of the ICCPR. Similar to the last three views, the HRC unanimously found a violation of Article 18(1). The HRC first underlined the fact that the authors wished to perform alternative civilian service stating that “[t]he Committee reiterates that the right to conscientious objection to military service is inherent to the right to freedom of thought, conscience, and religion. It entitles any individual to an exemption from

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compulsory military service if the latter cannot be reconciled with the individual’s religion or beliefs. The right must not be impaired by coercion. A State party may, if it wishes, compel the objector to undertake a civilian alternative to military service, outside of the military sphere and not under military command. The alternative service must not be of a punitive nature, but must rather be a real service to the community and compatible with respect for human rights.”300 The majority of HRC members added that “In the present cases, the Committee considers that the authors’ refusal to be drafted for compulsory military service derives from their religious beliefs, which have not been contested and which are genuinely held, and that the authors’ subsequent prosecution and sentences amount to an infringement of their freedom of conscience, in breach of article 18, paragraph 1, of the Covenant. The Committee recalls that repression of the refusal to be drafted for compulsory military service, exercised against persons whose conscience or religion prohibits the use of arms, is incompatible with article 18, paragraph 1, of the Covenant.”301 Of the minority, four HRC members subscribed to the individual opinion by Mr. Gerald L. Neuman who said “I agree with the Committee’s conclusion that the State party has violated article 18 of the Covenant, but I would reach that conclusion by a somewhat different route. In Yoon and Choi v. the Republic of Korea , the Committee explained that punishing conscientious objectors for their refusal to perform military service amounted to a restriction on their ability to manifest their religion or belief, and that the restriction would be compatible with article 18 of the International Covenant on Civil and Political Rights only if it were shown to be necessary for a valid purpose within the meaning of article 18, paragraph 3. I would apply the same analysis in the present case, bearing in mind the particular factual circumstances in Turkey—the State party has not identified any empirical reasons why its refusal to accommodate conscientious objection to military service would be necessary for one of the legitimate purposes listed in the Covenant.”302 Three other HRC members subscribed to the individual opinion by Sir Nigel Rodley who stated that “[t]he implication of relying on that provision is that circumstances could be envisaged in which the community interests contemplated by the provision could override the individual’s conscientious objection to military service. This goes against all our experience of the phenomenon of conscientious objection. It is precisely in times of armed conf lict, when the community interests in question are most likely to be under greatest threat, that the right to

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conscientious objection is most in need of protection, most likely to be invoked and most likely to fail to be respected in practice. Indeed, I do not for a moment believe that the Committee would ever use an analysis of article 18, paragraph 3, to prevent a person from successfully invoking conscientious objection as a defence against legal liability.”303 He added that “[i]n my view, the underlying issue concerns not article 18 alone, but article 18 in the penumbra of article 6, the right to life, the right that from its earliest days the Committee described as the ‘supreme right.’ Of course, not every deprivation of human life in armed conf lict (or otherwise) is to be considered a violation of article 6, and deprivation of life (killing) is not the same as deprivation of the right to life. But the value underlying that right—the sanctity of human life— puts it on another plane than that of other deep human goods protected by the Covenant. Paragraphs 1 and 2 of article 18 acknowledge that completely; paragraph 3 cannot but acknowledge it incompletely. The right to refuse to kill must be accepted completely. That is why article 18, paragraph 3, is the less appropriate basis for the Committee’s decision.”304 This opinion was extended by Mr. Fabí an Omar Salvioli stating that “[i]t would be impossible to produce figures on how many people in the course of history have had their beliefs f louted by being forced to do military service against their will, or have been persecuted or imprisoned for refusing to take up arms; many others were made to kill or died in armed conf licts in which they did not choose to take part. The recent jurisprudence of the HRC on the subject of conscientious objection to military service is not only based on solid legal grounds; it also pays a belated but well deserved homage to those victims.” 305 In sum, in this communication, the majority members of the HRC again emphasized the forum internum aspect of the freedom of thought, conscience, and religion, whereas the minority members underlined the forum externum aspect. Despite divided opinion between the forum internum and the forum externum aspects, these four recent communications clearly indicate that the HRC recognizes the freedom of the right to conscientious objection as deriving from the right to freedom of thought, conscience, and religion under Article 18 of the ICCPR. Since 1980 the HRC has evaluated the right to conscientious objection both in individual communications and in its published observations regarding states. By evaluating it within the framework of Article 18 of the ICCPR and with the support of General Comment no. 22 of 1993, the HRC has gradually come to recognize the right to conscientious

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objection and to develop the content of this right, despite having, at the outset, denied its existence. The United Nations Working Group on Arbitrary Detention and Conscientious Objection to Military Service The right to conscientious objection under the ICCPR has also been addressed by the “UN Working Group on Arbitrary Detention”306 (hereafter “the Working Group”) that has dealt with the prohibition on repeated punishment of conscientious objectors (ne bis in idem —the principle of “double jeopardy”). Among the cases investigated, a 1999 Turkish Case is an instance of where the Working Group explored the issue of ne bis in idem with regard to practice in Turkey.307 It found that Mr [Osman Murat] Ü lke’s [Turkish conscientious objector] detention was arbitrary, it having been ordered in violation of the fundamental principle of ne bis in idem , a principle generally recognized in countries where the rule of law prevails as being one of the most essential guarantees of the right to a fair trial.308

In this case, the Working Group raised the question of ne bis in idem in terms of whether each refusal to follow an order to perform military service established grounds for renewed prosecution, which, in turn, may result in a new conviction.309 It added that the principle of ne bis in idem presupposes the meeting of three conditions: the identity of the parties, the identity of the purpose,and the identity of the subject matter. According to the Working Group, in the case in question, both the identity of the defendant as a conscientious objector and the purpose of the offence were clear: to establish guilt and hand down a punishment. What remained was to establish whether the identity of the subject-matter was present.310 Regarding the identity of subject matter, the Working Group pronouncement was as follows: since, after the initial conviction, the person exhibits, for reasons of conscience, a constant resolve not to obey the subsequent summons, so that there is “one and the same action entailing the same consequences and, therefore, the offence is the same and not a new one.”311 (emphasis added).

The section in italics refers to “the same action” and its uninterrupted continuing results. An individual may renounce his/her conscientious objection solely as a result of a later conscientious decision-making process. For this reason, in exercising his/her free will, the conscientious

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decisions that an individual makes will cover that individual’s entire life, from the time he/she takes that decision until the time he/she renounces it of their own volition or until the intervention of death, thus imparting a unity to that decision. Unless the decision is renounced, the unity between the conscience and actions of that individual should not be harmed in any way.312 In the year 2000, the Working Group submitted its report to the fifty-seventh session of the CHR. The report underlined the fact that the purpose of repeatedly imprisoning conscientious objectors causes them to change their opinions by threat of punishment. The Working Group considered this to be in contravention of Article 18(2) of the ICCPR, according to which no one may be subjected to coercion that would infringe upon his/her freedom to have a belief of his/her choice.313 For this reason, the Working Group recommended that states without the appropriate provision should take the necessary measures to ensure the recognition of conscientious objection and, in the meantime, prevent the judicial system being utilized to coerce conscientious objectors into changing their convictions.314 Furthermore, the HRC had touched upon the same issue in its General Comment no. 32 which, in Paragraph 55, addresses the principle of ne bis in idem : “[r]epeated punishment of conscientious objectors for not having obeyed a renewed order to serve in the military may amount to punishment for the same crime if such subsequent refusal is based on the same constant resolve grounded in reasons of conscience.”315 In sum, the above illustrates that the practice of repeated prosecutions of conscientious objectors and arbitrary detention has appeared frequently on the agenda of the Working Group316 and, subsequently, of the HRC.317 The Working Group and the HRC have stated categorically that conscientious objection must be seen as a single action. Therefore, repeated punishment is a violation of the principle of ne bis in idem . Furthermore, the Working Group, in its opinions and reports and referring to the HRC’s General Comment no. 22, called on all states that have yet to introduce measures to make provision for the recognition of conscientious objection forthwith. It is apparent from this recommendation that the Working Group sees the right to conscientious objection as a fundamental human right.318 The Special Rapporteurs’ Reports on Conscientious Objection to Military Service The UN Special Rapporteurs on freedom of religion and belief and freedom of opinion and expression also deal with the right to conscientious

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objection.319 During their country visits, these Special Rapporteurs investigate allegations of the persecution of conscientious objectors and addressed the country’s practices in their reports to Government.320 For example, the Special Rapporteur on freedom of religion and belief in a country report on Turkey on August 11, 2000 announced: Finally, in accordance with the resolutions of the CHR (for example Resolution 1998/77 recognizing 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) and General Comment no. 22(48) of 20 July 1993 of the Human Rights Committee, and on the basis of the Turkish Constitution, which enshrines freedom of belief, the Special Rapporteur believes that regional characteristics and tensions are not sufficient to justify, in Turkey or anywhere else, a categorical rejection of conscientious objections, and recommends that legislation be adopted to guarantee the right to conscientious objections, particularly for religious beliefs.321

The Special Rapporteur on freedom of opinion and expression also addressed the right to conscientious objection on his mission to Sudan declaring that imposing military service as a condition for continuing one’s studies is fundamentally a violation of the right to education. Appropriate forms of civil service or conscientious objection to military service should be sought in order to respect both freedom of opinion and the right of students to choose.322

Through reports, the Special Rapporteur on freedom of religion and belief recommends that since conscientious objection constitutes a right that is part of the right to freedom of religion or belief, legal provision should be adopted by states in order to safeguard this right.323 In addition, Special Rapporteurs on freedom of opinion and expression have asserted that there is a strong connection between the right to conscientious objection and the right to freedom of opinion. Thus, conscientious objectors should have the opportunity to have access to impartial information regarding the right, so that they may better articulate it in a free environment. This freedom also applies to those who support conscientious objectors, who should, likewise, be able to pronounce their opinions freely. Thus, the right to conscientious objection should be recognized by states as a demonstration of their respect for freedom of opinion.324

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Conscientious Objection to Military Service and Refugee Status It has been seen that the right to conscientious objection has been explicitly recognized and developed by the UN mechanisms. However, thousands of conscientious objectors worldwide have chosen to f lee their home countries where the only alternative would be compulsory military service with the consequent obligation to participate in military activities in violation of their religious, political, or moral convictions. This section will look into the question of whether the right to conscientious objection is, in actual fact, accepted as a basis for refugee status in international law. To this end, the United Nations High Commissioner for Refugees (UNHCR) Handbook on the Determination of Refugee Status (hereinafter “the Handbook”) and the 1951 Convention relating to the Status of Refugees (hereinafter “the 1951 Refugee Convention”) will be closely examined.325 In addition, there will be an examination of whether states’ attitudes to the right to conscientious objection are currently undergoing any change in regard to asylum cases. Consequently, the section will attempt to answer the question of whether it is a viable option for a conscientious objector to seek asylum in another country. UN bodies have been showing interest in conscientious objection as a basis for refugee status since 1978. The General Assembly326 and the CHR 327 have adopted several resolutions urging Member States to consider granting all the rights and benefits accorded to refugees under existing legal instruments to such persons. At present, it is debatable whether merely having to face the threat of persecution for refusing to perform military service can be considered sufficient grounds for the granting of refugee status under the 1951 Refugee Convention.328 Both the 1951 Refugee Convention (and its 1967 Protocol) and the Handbook are instructive in this regard. The 1951 Refugee Convention names five areas of persecution as grounds for seeking refugee status: race, religion, nationality, membership of a particular social group, or political opinion.329 Moreover, a claim for refugee status must be based upon the claimants’ “wellfounded fear of persecution” in regard to one of the five grounds.330 Then in 1979, the UNHCR prepared a Handbook “for the guidance of governments” in “determining refugee status” under the 1951 Refugee Convention (and its 1967 Protocol).331 Although the Handbook is not binding, governments have continued to circulate it. Moreover, in constructing a definition of the term “refugee,” governments often cite the Handbook as an authoritative statement.332 Neither the 1951 Refugee Convention nor its 1967 Protocol had mentioned conscientious

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objection as such; it made its first appearance in the Handbook,333 though even here it is not treated as a topic in its own right, but is referred to within the discussion on “deserters and persons avoiding military service.”334 According to the Handbook, a deserter or draft evader is not generally considered to be a refugee.335 However, when one reads all the paragraphs of chapter 5 of the Handbook, one sees that “deserters and persons avoiding military service” can found a claim for refugee status in exceptional situations where: a claimant “would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion,”336 or “the performance of military service would have required his participation in military action contrary to his genuine political, religious, or moral convictions, or to valid reasons of conscience.”337 Furthermore, if a claimant refuses to perform military service on purely political grounds, he/she must meet the additional criteria of demonstrating that the type of military action to which that individual objects “is condemned by the international community as contrary to basic rules of human conduct.”338 Disproportionately Severe Punishment for Draft Evasion or Desertion In relation to the above grounds for applying for refugee status, it could possibly be considered acceptable for a government to punish an individual for committing the crime of desertion or draft evasion, but where the punishment inf licted is increased in severity because of the individual’s race, religion, nationality, social group membership, or political opinion, a question of discrimination will arise; at that point punishment becomes persecution.339 The 1951 Refugee Convention affirms that any act or punishment, such as physical torture and imprisonment, intended to force individuals to act contrary to their sincerely held beliefs should be considered as persecution.340 This point is also made in the Handbook.341 Furthermore, Mr. Henkel, former UNHCR Deputy Representative, has stated that the “UNHCR takes the view . . . that, especially where no alternative to military service exists, significant punishment for refusal to perform military service, based on strong religious or moral convictions, or on political opinion, may be considered persecution.”342 In addition, conscientious objectors who refuse to perform military service, deserters, and draft evaders are often sentenced to imprisonment

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in accordance with the laws of the state of which they are citizens. This raises the issue of whether long prison sentences may be characterized as disproportionate punishment. For instance, in the Foughali case the UK’s Immigration Appeal Tribunal (IAT) found that a substantial period of imprisonment (between 2 and 10 years) for refusing active military service could not, by itself, be regarded as disproportionate.343 Objecting for the Right Reason Should an individual object to performing military service for political, religious, moral, or valid reasons of conscience, he/she must demonstrate the sincerity of his/her beliefs. Paragraph 174 of the Handbook states: “The genuineness of a person’s political, religious or moral convictions, or of his reasons of conscience for objecting to performing military service, will of course need to be established by a thorough investigation of his personality and background.” In addition, the individual must show that military service in his/her country is compulsory and that the State does not admit the validity of his/her beliefs.344 The way in which the Handbook is worded here leads to widely varying interpretations by different states. In the Canas-Segovia case, for instance, two brothers applied for asylum in the USA claiming that, although military service was compulsory in El Salvador for all males between 18 and 30, their religious beliefs as Jehovah’s Witnesses precluded such service.345 Seeing that Salvadorean law punished those evading or resisting military service as deserters with prison sentence of between 6 months and 15 years, this should have been a prime Handbook case in which refugee status could be awarded.346 However, ignoring the Handbook provisions, the Board of Immigration Appeals reached the verdict that, in accordance with the United States’ Immigration and Nationality Act, the El Salvador conscription policy did not amount to persecution.347 The Court of Appeals also rejected the brothers’ submissions, on the grounds that they would not be subjected to specifically religious persecution, adding that military service was a duty for all Salvadoran men regardless of religious or political beliefs.348 In contrast, a different Jehovah’s Witness asylum applicant from El Salvador has been granted asylum by the Canadian Immigration Appeal Board (IAB). The applicant had refused to perform military service because of a “strongly held conscientious objection to taking human life.”349

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Military Actions Condemned by the International Community The Handbook allows that an objector’s refusal to perform military service may be based solely on political conviction. For instance, a person’s claim might be based on disagreement with his/her government regarding the justification for a particular military action.350 Prime examples of this sort of objection are almost 100,000 American conscientious objectors opposing the Vietnam War, or the soldiers who, disapproving of the apartheid regime, refused to participate in the South Africa military or police forces.351 At present, at least 20 former American soldiers are claiming refugee status in Canada.352 Paragraph 171 of the Handbook carries a proviso regarding political conviction: “[i]t is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action.” Moreover, a person who is an objector on the basis of political belief must meet an additional criterion from paragraph 171 in that military action is “condemned by the international community as contrary to basic rules of human conduct.”353 This language would seem to exclude asylum claims from the types of objector who f led from the USA and other Allied States during the Vietnam, Iraq, and Afghanistan wars.354 According to Musalo, paragraph 171 should be understood as arising from the tragic experiences of the Second World War.355 Thus, Eide and Mubanga-Chipoya point out that according to the Nuremberg principles, even though he/she has not been involved in the decision-making process, the individual is still responsible for certain acts that contravene international law.356 Thus, no one can escape from individual responsibility on a plea of superior orders.357 Kurzas and other scholars believe that this widely accepted principle places a duty on individuals to avoid military action when it is probable that human rights violations will take place.358 It could be considered hypocritical on the part of refugee authorities and courts to decry war crimes and acts of genocide while, at the same time, refusing to protect those conscientious persons eschewing involvement in such acts.359 In support of the conscientious objector, paragraph 171 of the Handbook specifies that a person who objects to participating in an internationally condemned conf lict can, in theory, claim that the risk of prosecution amounts to persecution but the claim is not always validated. Instances are to be found in the Hinzman and Hughey cases, the applicants from the USA sought refugee status in Canada. They argued that US military action in Iraq involved a violation of international

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humanitarian law, which was condemned by the international community as contrary to basic rules of human conduct.360 The appellants added that, because of these violations of international humanitarian law, paragraph 171 of the Handbook directs that any punishment for their refusal to participate in such conduct would amount to persecution.361 The Canadian Federal Court rejected this argument. It ruled that there was no evidence to show that the “breaches of international humanitarian law that have been committed by American soldiers in Iraq . . . rise to the level of being either systematic or condoned by the state.”362 In 2007 the Federal Court of Appeal and then the Supreme Court in Canada also dismissed their appeal.363 In fact the awarding of asylum to persons refusing to participate in military service due to international condemnation of a conf lict is actually weakened by the reluctance of national and international bodies to find against other states in respect of such conf licts. It should be of great concern that verdicts are often inf luenced by diplomatic and economic circumstances rather than by the internationally agreed rules; hence the disinclination of national governments to use condemnatory language for fear of upsetting bilateral relations.364 Indeed, as Lippman also states, in practice, asylum decisions are linked to political expediency.365 This opinion is shared by Marcus: The ambiguity of the Handbook, the lack of an independent internationally-based inquiry into asylum requests, and the domestic nature of asylum proceedings leaves states the ultimate authority in asylum decisions . . . The decision to grant asylum is largely determined by the political relationship between the state the resister seeks to escape and the state in which the resister seeks refuge. Asylum decisions also ref lect states’ positions toward the importance of recognising conscientious objection as an international human right.366

This finding is well illustrated by the aforementioned cases as well as by instances of American objectors to the Vietnam War seeking asylum in other countries. In most cases, states did not grant asylum under the 1951 Refugee Convention, opting to provide temporary residence permits instead. Nevertheless, considerable political difficulties were created between Sweden and the USA when Sweden granted “humanitarian asylum” to American deserters and draft evaders.367 In general, national courts have used similar language in their decisions, repeatedly stating that “there is no evidence to show that the

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breaches of international humanitarian law (that) have been committed by the [American, British, Russian, Turkish] soldier in [Iraq, Afghanistan, Chechnya, Turkey et cetera.].”368 However, paragraph 171 of the Handbook refers only to military action “which is condemned by the international community as contrary to basic rules of human conduct,” there being no mention of the need to establish a “sufficiently” widespread basis.369 As Bailliet underlines: international law is characterized as a frame of reference for the development of a reaction based on conscience. Hence, it is possible to accept a broad interpretation of this clause as being met by provision of reports confirming the existence of violations of humanitarian norms, without having to establish certain justifiability for prosecution.370

Although the recognition of the conscientious objector’s right to asylum is, in practice, limited to the conf licts condemned internationally, any violation of humanitarian norms or human rights principles by the military should suffice as valid grounds for asylum. Indeed, Musalo remarks that the Handbook demands only that the conscientious objector should demonstrate that he/she is sincere in refusing to participate in human rights violations or abuses without the necessity of having to supply absolute proof of personal participation in human rights violations.371 It is regrettable that, for cases of conscientious objection, states and governmental regional bodies have sought a uniform standard of proof.372 To sum up, as illustrated above, the practice of many countries, mindful of political and economic considerations, is to continue to interpret the law in such a way as to deny protection to genuine conscientious objectors.373 Undeniably, sufficient attention has not been paid to the crucial fact that the conscientious objector suffers persecution for objecting.374 It is no rare occurrence that, where a person disagrees with the military actions of the state, persecution is suffered consequent on obedience to conscience.375 Such individuals should be granted refugee status by the country to which they migrate if, in their own country, the right to conscientious objection is not recognized and it has been seen that the Handbook is supportive of such a solution. Moreover, international acceptance of the right to conscientious objection in itself warrants the granting of asylum to conscientious objectors. The 1951 Refugee Convention must be treated as a living instrument to be interpreted in the light of presentday conditions.376

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Concluding Remarks Articles 18 of the UDHR and ICCPR explicitly recognize the right to freedom of thought, conscience, and religion. However, the UDHR and ICCPR still make no specific reference to the right to conscientious objection. Unlike the UDHR, the phrases “conscientious objection” and “conscientious objectors” appear only in Article 8(3)(c)(ii) of the ICCPR that, initially, this article constituted a considerable obstacle to the right to conscientious objection for the HRC and other UN mechanisms. However, the UN mechanisms now recognize the right to freedom of conscientious objection as a legitimate exercise of the right to freedom of thought, conscience, and religion.377 In addition, those same UN mechanisms have urged Member States to recognize the right to conscientious objection at the domestic level and to include it as a basis for refugee status. On this point, as mentioned above, both the 1951 Refugee Convention and the Handbook published by the Office of the United Nations High Commissioner provide support to states in international law. It is therefore evident that the UN mechanisms have, over time, undergone a positive evolution in recognizing the right to conscientious objection. The origins of this evolution are located in the UDHR and ICCPR, which is the reason for having analyzed its travaux pr éparatoires debates in this section. When analyzing the travaux pr éparatoires on the right to freedom of thought, conscience, and religion, it becomes plain that the drafters’ intention was to incorporate secular beliefs other than religious beliefs. The drafters were careful to protect the internal ( forum internum) and external ( forum internum) sphere of freedom of thought, conscience, and religion. UN mechanisms have pointed out that the right to conscientious objection could be recognized for both secular nonreligious and religious beliefs and that states should not infringe upon the forum internum aspect of this right.378 Overall, at present, the cumulative opinions of the UN mechanisms regarding the right to conscientious objection have established a powerful resource for those who promote the acceptance of this right as an international human right. These UN mechanisms have not only produced opinions, comments, resolutions, reports, and concluding observations regarding the right to conscientious objection itself but their enforcement mechanisms have also been instrumental in forming international practice, a circumstance that has been an instrumental acceptance of the right to conscientious objection in international law.379 In its latest views of 2011 and 2012, the HRC went so far as

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to reexamine the right to conscientious objection in connection with the vitally important forum internum aspect of the freedom of thought, conscience, and religion, an aspect recognized as inviolable. The HRC’s recent views since 2006 demonstrates the way the right to conscientious objection has evolved within the UN mechanisms that now recognize the right to conscientious objection as a universal right accepted in international human rights law.

CHAPTER 5

Regional Level: The European and the Inter-American Human Rights Systems

I

n analyzing the travaux pr éparatoires and the present scope of the key European and Inter-American documents, this chapter will reveal the present content of the right to conscientious objection under freedom of thought, conscience, and religion. Moreover, in order to more explore the present scope of this right the approaches of judicial and nonjudicial mechanisms in the Europen and the Inter-American Human Rights Systems will be examined. The European Human Rights System In Europe there are presently three intergovernmental organizations: The Council of Europe, the European Union (EU), and the Organisation for Security and Co-operation in Europe. The Council of Europe

The European Convention on Human Rights, Article 9 Travaux Préparatoires of Article 9 of the European Convention on Human Rights1 The European Convention on Human Rights (hereinafter the “ECHR” or “the Convention”) originated in a Draft Convention of Human Rights, published in 1949 by the International Juridical Section of the European Movement. 2 According to this text, every contracting state must guarantee to all persons within its territory all the rights specified in Articles 1 and 2, including “freedom of religious belief, practice

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and teaching.”3 At that time, Mr. Pierre-Henri Teitgen, former French Resistance leader and minister, drew attention to a particularly problematic aspect of this obligation: all the states that have taken part in drawing up, signing and promulgating our Statute have bound themselves to respect the fundamental rights of the human individual. They have accepted the principles of a collective guarantee of fundamental freedoms. We cannot propose that they should all immediately accept a common definition of these freedoms, but we can ask them to agree forthwith to a collective guarantee, within the framework of the Council of Europe, of these fundamental freedoms, as they are at present defined in their own respective laws, until the time comes when they can guarantee them in the form of a general and collective definition.4

Achievement of the acceptance of a common definition of “freedom” was to prove a long and arduous struggle. The First Session of the Consultative Assembly of the Council of Europe took place in August 1949. There was a debate regarding the measures to be implemented in order to realize the Council of Europe’s aims regarding the maintenance and development of human rights and fundamental freedoms in the light of Article 1 of the Convention.5 During this sitting, the importance of the right to freedom of religion was raised several times. 6 Thus, in its recommendation to the Committee of Ministers of the Council of Europe, the Consultative Assembly used the same wording as that found in the ECHR that includes the right to freedom of thought, conscience, and religion as laid down in Article 18 of the Universal Declaration of Human Rights (UDHR).7 On August 30, 1949, it was unanimously accepted (19 votes). 8 However, the Committee of Ministers provided a general limitation of the freedom of thought, conscience, and religion stating that In the exercise of the rights and enjoyment of the freedoms guaranteed by the Convention, everyone shall be subject only to such limitations as are laid down by law with the sole aim of ensuring recognition and respect for the rights and freedoms of others, and in order to meet the proper requirements of other, and in order to meet the proper requirements of morality, order, public safety and the general well-being in a democratic society. These rights and freedoms shall not be in any case exercised in opposition to the objects and principles of the Council of Europe.9

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This draft was also used by the Consultative Assembly in its recommendation to the Committee of Ministers. In November 1949 the Committee of Ministers decided to convene a Committee of Experts to prepare a draft Convention for it to consider.10 The Committee of Experts adopted the following proposal, 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in the interests of public safety, or for the protection of public order, health or morals, or the protection of the rights and freedoms of others, provided that nothing in this Convention may be considered as derogating from the already existing national rules as regards religious institutions and foundations, or membership of certain confessions.11 The Committee of Ministers then decided to convene a Conference of Senior Officials to prepare the ground for the political decisions to be taken by the Committee. It was apparent that the Committee of Ministers did not want the responsibility of dealing with the issues raised by the Committee of Experts report alone; hence the establishment of a Conference of Senior Officials whose task it was to suggest solutions to the political problems.12 The Conference of Senior Officials adopted the proposal of the Committee of Experts without debate or comment,13 though it replaced the phrase “in the interest of public safety” with “necessary in a democratic society.”14 The Committee of Ministers adopted Article 9 on August 7, 195015 and referred it to the Consultative Assembly. There were no further amendments to Article 9 at the Consultative Assembly sittings, which took place between August 11 and 28, 195016 and it was adopted by the Committee of Ministers, along with the rest of the ECHR on November 4, 1950.17 The Convention entered into force on September 3, 1953 and thereby became the first regional instrument to guarantee human rights. What is curious about this drafting history is that there was no significant substantive discussion about the scope and meaning of the freedom at issue. It is reasonable to assume that the European States

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considered such debate unnecessary since they had all been involved in the debates over the UDHR and had all voted for the Declaration in 1948. Delegates emphasized that the UDHR was an appropriate model for safeguarding freedom of thought, conscience, and religion, an issue they considered to be very important.18 Unlike the drafters of the International Covenant on Civil and Political Rights (ICCPR), the ECHR’s drafters chose not to argue regarding the right to conscientious objection under freedom of thought, conscience, and religion (Article 9). In that respect, Decker and Fresa states: If the drafters believed that a right to conscientious objection would impede the ability of a state to raise an army, why is national defence not among the limitations placed on the right to freedom of thought, conscience, and religion under Article 9(2)? It is the authors’ belief that irrespective of the interpretation of Article 4 by the Commission [the European Commission of Human Rights], the drafters did not want to decide this question definitively either way. One must keep in mind that the drafters were seeking to develop a list of rights that were essential to ensure democracy and human dignity. They wanted the list to include only rights which were currently recognized by the countries of Europe. While none of the rights were supposed to be “aspirational,” they did not want the Convention to be so narrow as to deprive rights either. Taking all these points into consideration, conscientious objection was an issue that the drafters probably wanted left to be decided at another time.19

There were, in fact, two other explanations as to why the drafters were reluctant to address the issue. First, at the time the Convention was drafted, there was no recognition of the right to conscientious objection, neither in international law nor in most countries. 20 Secondly, it can be seen from the records of the Committee of Experts meetings, the issue was highly political at the time. 21 The next section will further examine the scope of freedom of thought, conscience, and religion and its limitations with the aim of clarifying the content of the right to conscientious objection provided by Article 9 of the ECHR. Final Text: the Meaning of Article 9 of the ECHR Article 9 reads as follows: 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others

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and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others. Article 9 of the ECHR is similar in structure to Article 18 of the ICCPR, except that it consists of two paragraphs. The first paragraph is identical to Article 18 of the UDHR and comprises two parts. The first part, before the semicolon, unconditionally guarantees everyone’s right to freedom of thought, conscience, and religion. The second part, after the semicolon, gives a two-pronged definition of the right to freedom of thought, conscience, and religion: the first prong makes reference to the “freedom to change his religion or belief ” and the second prong mentions the “freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance.” The second paragraph of Article 9 makes the “freedom to manifest one’s religion or beliefs” subject to such limitations by the State as are prescribed by law and necessary in a democratic society in the interest of public safety, for the protection of public order, health, or morals, or of the rights and freedoms of others. These grounds are similar to those set out in Article 18(3) of the ICCPR. 22 The above structure of Article 9 raises the question of what is meant by the terms “freedom of thought, conscience, and religion” and “belief.” Unfortunately, there is a dearth of jurisprudence addressing the meaning and scope of the right to freedom of thought. 23 Freedom of thought has usually been the first step toward achieving other rights and freedoms guaranteed by the Convention. For example, it is evaluated under freedom of religion, freedom of expression, and the right to free correspondence. 24 Freedom of thought itself covers freedom from thought-control, from intervention by examination and includes the freedom of parents to choose their children’s forenames. 25 The term “conscience,” which lies at the heart of the right to conscientious objection, merits careful examination. Like freedom of thought, the definition of the term “conscience” has seldom featured in the caselaw of the European Court of Human Rights (hereafter “the Court” or “ECtHR”) and the former European Commission of Human Rights (hereafter “the Commission”). It has been shown that conscience can be

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based on either religious or nonreligious belief. 26 In the case-law of the Court and the Commission, the problem most commonly raised under the heading “freedom of conscience” concerns the right to conscientious objection. This jurisprudence will be further explored in a later section. 27 Regarding religious beliefs, the majority of Court and Commission cases have not found it necessary to give a definite interpretation to what is meant by the term “religion.” 28 In the case of Kimlya and others v. Russia , the Court held that “[i]t is clearly not the Court’s task to decide in abstracto whether or not a body of beliefs and related practices may be considered a “religion” within the meaning of Article 9 of the Convention.” 29 In the Otto-Preminger Institute v. Austria , the Court also held that “[a]s in the case of “morals” it is not possible to discern throughout Europe a uniform conception of the significance of religion in society.”30 On the contrary, the case-law of the Commission and the Court 31 willingly accepts the various “mainstream” religions together with their minority variants as belief systems; all are protected under law.32 Also covered are the more ancient faiths, like Druidism 33, as well as new faiths such as Jehovah’s Witnesses,34 Scientology,35 the Moon Sect,36 and the Divine Light Zentrum.37 Although the first part of Article 9(1), before the semicolon, makes no mention of the term “belief,” the second part of the paragraph includes “belief ” in the context of “the right to change religion or belief.” The meaning of the word “belief,” therefore, needs probing. In Campbell and Cosans v. the UK , the term “belief ” denoted “views that attain a certain level of cogency, seriousness, cohesion and importance.”38 The Commission found “pacifism,”39 “veganism”40 and “opposition to abortion”41 to be beliefs that fall within the ambit of Article 9. For instance, in Arrowsmith v. the UK , the Commission held that “pacifism as a philosophy . . . falls within the ambit of the right to freedom of thought and conscience. This attitude of pacifism may therefore be seen as a belief (“ conviction”) protected by Article 9(1).”42 Previous decisions of the Commission have even suggested that Article 9 could cover borderline “political ideologies,”43 such as fascism44 and communism.45 In effect, Article 9 protects freedom of thought and conscience, as well as religious and nonreligious beliefs,46 including atheists, agnostics, skeptics, and the unconcerned,47 as well as “the right not to practise or to be associated with religious activities against one’s will.”48 The right to change one’s beliefs or religion is also necessarily included.49 The significance of such a broad interpretation of the concept of belief for conscientious objectors is that when they make a decision based on

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religious or other beliefs dictated by conscience, their decision is safeguarded by the ECHR. The second part of the first paragraph guarantees the freedom to manifest one’s religion or belief. Of the article’s two prongs, the first permits “freedom to change his religion or belief ” and the second speaks of “freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” As explained more fully under Articles 18 of the UDHR and the ICCPR, the former concerns the internal sphere of this right, the forum internum, and the latter concerns the external sphere, the forum externum.50 The second paragraph of Article 9 sets out some grounds for limiting the right to manifest a religion or belief. As a general rule, any interference by the state with the right to freedom of thought, conscience, and religion will be unlawful. However, if the state interferes with the right to manifest a religion or belief ( forum externum) under Article 9(2), this interference may be justifiable. In practice, the onus is on the applicant to prove that there has been interference with the enjoyment of his/her right.51 In addition, it must be proved that the interference is not justified under Article 9(2): either that it is not “prescribed by law,”52 that there is no legal basis,53 or that the law is not sufficiently precise.54 Furthermore, the applicant must also prove that no legitimate aims— the interests of “public safety,”55 “protection of public order,”56 “health and morals,”57 or “the protection of the rights and freedom of others”58 interfere with his/her right exist, and the applicant must prove that the measure was not “necessary in a democratic society.”59 Despite the fact that states enjoy a certain “margin of appreciation”60 in terms of interference with the enjoyment of the applicant’s right, they do not have “unlimited power of appreciation”; 61 they are therefore obliged to explain the need for interference in the manifestation of religion or belief in accordance with the Article 9(2) limitation clause. Aside from Article 9(2), Article 15, too, can be used to justify the limitation of Convention rights.62 One of the major differences between the ICCPR and the ECHR is that freedom of thought, conscience, and religion does not appear as a nonderogable right under the ECHR’s derogation article, Article 15. The second paragraph of Article 15 cites certain articles (Articles 2, 3, 4(1), and 7) as embodying nonderogable rights—Article 9 is not among them.63 However, it is almost impossible to conceive of a case that would “strictly require” interference from the state in a believer’s forum

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internum ; consequently, some scholars claim that the right to freedom of thought, conscience, and religion is nonderogable under Article 15 despite its omission from that article.64 Evans, for example, highlighted that This is likely to be difficult. Since the first sentence of Article 9(1) is principally concerned with the forum internum , derogating from this narrow band of rights in only the most serious of situations may seem a satisfactory compromise between the demands of the individual and of the State. Given that these rights are, however, chief ly exercised in the private sphere, it is questionable whether there is a need for any limitation at all. 65

Evans and Shaw also assert that the Convention cannot be cited to restrict the obligations of other treaties; thus, Member States of the Council of Europe also party to the ICCPR cannot derogate from the right to freedom of religion or belief even in states of emergency.66 As will be outlined in detail in subsequent sections, the conscientious objectors’ interpretation of the connection between Articles 9 and 15 is as follows: a conscientious objector’s rooted inner beliefs, or forum internum , regarding military service is inviolable.67 Their personal sphere is protected by Article 9(1) and, thus, cannot be interfered with by the State, even in time of war or public emergency that may threaten the life of nation (Article 15). Before focusing on the conscientious objection case-law of the European Commission of Human Rights and the European Court of Human Rights, it is necessary to address Article 4(3)(b) of the Convention for two reasons: first, this article is the only Convention article to use the term “conscientious objectors.” Secondly, the failure of the Commission and the Court to recognize the right to conscientious objection in their case-law (until the Bayatyan judgment on July 7, 2011) relates to the provisions of Article 4(3)(b). Travaux Préparatoires of Article 4(3)(b) of the ECHR The Committee of Experts began with a draft article conveyed to the Committee of Ministers.68 As regards slavery and forced labor, the draft was identical to the provisions in the UDHR: Article 2 In this Convention, the Member States shall undertake to ensure to all persons residing within their territories: . . . 2. Exemption from slavery and servitude, in accordance with Article 4 of the United Nations Declaration.69

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The Committee of Experts retained this definition as Alternative A, the “enumeration of rights.” Surprisingly, under the section of the report titled “Commentary on the Draft Convention General Construction of the Convention” 70 in the travaux préparatoires of Article 4, there is no record of Alternative A being discussed at all. The United Kingdom (UK) supported an Alternative B dealing with the definition of rights, and submitted several amendments to the Consultative Assembly’s draft.71 For instance, the first amendment under Alternative B defines the right more precisely: Article 2 1. No one shall be held in slavery; slavery and the slave trade shall be prohibited in all their forms. 2. No one shall be held in servitude. 3. No one shall be required to perform forced or compulsory labour except pursuant to a sentence to such punishment for a crime by a competent court.72

The UK submitted a second amendment addressing the limitation to the scope of compulsory or forced labor.73 The draft of the amendment to the then numbered Article 6 was: 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this article, the term “forced or compulsory labour” shall not include: a. any work required to be done in the ordinary course of detention imposed by the lawful order of a court; b. any service of a military character or service in the case of conscientious objectors exacted in virtue of compulsory military service laws; c. any service exacted in case of an emergency or calamity threatening the life or well-being of the community; d. any work or service which forms part of normal civic obligations.74 Decker and Fresa outline the importance of this draft as follows: This draft is important because it shows the first formulation of conscientious objection within the antislavery article. As paragraph 3(b) [see

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the draft above] illustrates, there is no language which limits a right to conscientious objection. The paragraph simply excludes conscientious objection from being considered forced or compulsory labor.75

Overall, the Committee of Experts also considered that “the choice between the two systems should be decided in the light of political rather than legal considerations.” 76 It proceeded to submit the two drafts to the Committee of Ministers, the first draft being based on the UK amendments covering the UK’s “proposal concerning the definition of rights” 77 along with an alternative version following “completely the main lines of the [Consultative] Assembly’s Proposal.” 78 However, after reading the report of the Committee of Experts, the Committee of Ministers was reluctant to deal with the issues it raised. Consequently, the Committee of Ministers convened a conference of high-ranking officials to prepare the ground for the political decisions to be taken by the Committee of Ministers.79 The Conference of Senior Officials adopted the UK version deciding, at the same time, to enshrine the prohibition of slavery and forced labor in Article 4 instead of Article 5. 80 Article 4 3. For the purposes of this article, the term “forced or compulsory labour” shall not include: a. any work required to be done in the ordinary course of detention imposed (by the lawful order of a court)81 according to the provisions of Article 5 hereafter;82 b. any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service. 83 The Conference of Senior Officials went on to send this draft Article 4 with the bulk of the Convention text to the Committee of Ministers where some further amendments were made. 84 However, Article 4(3)(b) remained unchanged. The Committee of Ministers finally adopted the text of Article 4 with the rest of the Convention in Rome on November 4, 1950. In sum, the drafters of the ECHR dealt with conscientious objection under Article 4(3)(b). There is no definite information regarding the Convention drafters’ opinions relating to Articles 4(3)(b) and 9. The above indicates that the demonstration of conscientious objection under

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Article 4(3)(b) is based entirely on political grounds. Decker and Fresa further explain the reasons for this: One can guess that the reason why states were afraid that compulsory military service would be considered forced labor, is that it would impede their ability to defend their countries. One can also see that in those countries in Europe that had conscientious objection in 1950, they would not want their alternative service (usually of a civic nature) seen as forced labor. If a state that granted conscientious objection could not require alternative [civilian] service, there would be no benefit to the state for allowing this right. Moreover, there would be completely unequal treatment of people based on their belief. Lastly, if this situation occurred, the “f loodgate” argument may actually hold true. That is to say, everyone would claim conscientious objection if they could opt out of service altogether. 85

However, in the light of the above debates it can be seen that Article 4(3)(b) neither recognizes the right to conscientious objection nor prevents its recognition. Thus, this article constitutes no actual obstacle to the recognition of the right to conscientious objection. Recognition or nonrecognition of this right was therefore left to the discretion of states. Recognition of the Right to Conscientious Objection to Military Service by the Parliamentary Assembly and the Committee of Ministers of the Council of Europe The Resolutions and Recommendations of the Parliamentary Assembly In the first formal attempts to establish a universal right to conscientious objection at the European regional level, the Parliamentary Assembly of the Council of Europe (PACE), in 1967, adopted Resolution 33786 and Recommendation 47887 on just such a right. 88 The PACE, having held its first session in Strasbourg on August 10, 1949, is the oldest international parliamentary assembly and is one of two statutory organs of the Council of Europe. 89 With regard to the right to conscientious objection, the PACE’s first resolution in 1967 states that 1. Persons liable to conscription for military service who, for reasons of conscience or profound conviction arising from religious, ethical, moral, humanitarian, philosophical or similar motives,

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refuse to perform armed service shall enjoy a personal right to be released from the obligation to perform such service. 2. This right shall be regarded as deriving logically from the fundamental rights of the individual in democratic Rule of Law States which are guaranteed in Article 9 of the European Convention on Human Rights.90 It is clear that this resolution recognizes the right to conscientious objection as a human right. In addition, it incorporates philosophical motivation as grounds for conscientious objection, whereas the other institutions in the Council of Europe and the United Nations (UN) do not normally include this motive.91 The same year, the PACE produced Recommendation no. 478 advocating that the Committee of Ministers instruct the Committee of Experts on Human Rights to prepare proposals to implement the principles embodied in Resolution 337 in order that the right to conscientious objection be recognized in all Member States of the Council of Europe.92 The Committee of Ministers, however, omitted to take up the PACE’s recommendations, offering the following reasons: the domestic law of several states already covered the issue adequately; other states declared that they were unwilling to alter their laws for such a policy; and yet other states, while approving of the principles behind Recommendation 478, doubted that the Council of Europe would be able to encourage the adoption of an international agreement on the right to conscientious objection.93 Despite the fact that the Committee of Ministers declined to act on the PACE’s recommendation, the PACE restated its position in 1977 recommending that the Committee of Ministers: a) urge the governments of Member States, in so far as they have not already done so, to bring their legislation into line with the principles adopted by the Assembly; [and] b) introduce the right of conscientious objection to military service into the European Convention on Human Rights.94 As with Recommendation 478, and for the same reasons, the Committee of Ministers took no action on this Resolution either.95 Not until 1987 did the Committee of Ministers finally take action to invite the governments of Member States to recognize the right to conscientious objection.96

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In the 2001 report of the Committee on Legal Affairs and Human Rights it was noted that, despite the fact that the right to conscientious objection is not explicitly guaranteed by the Convention, conscientious objection is a fundamental aspect of the right to freedom of thought, conscience, and religion.97 Furthermore, the PACE expressed in its Recommendation no. 1518(2001) that the right to conscientious objection is a fundamental aspect of the right to freedom of thought, conscience, and religion as embodied in the UDHR and the ECHR.98 In addition, regarding the right to conscientious objection and alternative civilian service, the 2001 Recommendation enumerates “the right to be registered as a conscientious objector at any time: before, during and after conscription, or performance of military service”;99 and “the right for permanent members of the armed forces to apply for the granting of conscientious objector status.”100 Moreover, it specifies “the right for all conscripts to receive information on conscientious objector status and the means of obtaining it.”101 Finally, the recommendation advocates a form of “genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character.”102 In this recommendation the term noncombatant is not mentioned as in many previous international documents. This means that unarmed military service has not been included within the term “alternative service” that is seen as taking on an entirely civil nature. The PACE also recommended that the Committee of Ministers accept a protocol that would amend Articles 4(3)(b) and 9 of the Convention in such a way that the right to conscientious objection would be recognized.103 However, the Committee of Ministers decided not to act upon this recommendation. The Committee of Ministers replied that its preferred course of action was to make a sustained effort to implement the 1987 Recommendation.104 Subsequently, the PACE adopted Recommendation 1742 (2006) concerning the human rights of members of the armed forces.105 In this Recommendation, the PACE “recalls that the right of conscientious objection is an essential component of the right to freedom of thought, conscience, and religion as secured under the Universal Declaration of Human Rights and the European Convention on Human Rights.”106 The PACE has since adopted several additional resolutions regarding specific countries.107 For example, in 2004 the PACE adopted Resolution 1380(2004) on Turkey. The PACE maintained that “[d]espite Turkey’s geostrategic position, the Assembly also demands that Turkey recognize the right to conscientious objection and introduce an alternative civilian service.”108

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Furthermore, the PACE, in its Resolution 1532(2007), pressed the Armenian government to amend its domestic law dealing with alternative civilian service in order to bring it into line with the recommendations proffered by the Council of Europe specialists examining the case. At the same time, Armenia was exhorted to declare an amnesty, freeing all conscientious objectors then in prison.109 In conclusion, as evidenced in the PACE’s 2001 resolution, debates regarding the exercise of the right to conscientious objection had been taking place at the Council of Europe for 30 years.110 As a result of its Resolutions, the PACE became the first organ of the Council of Europe to recognize the right to conscientious objection. It is also a fact that the PACE has played an important role in developing the content of the right to conscientious objection in Europe. In the next section, the interpretation of the Committee of Ministers, as the second statutory organ of the Council of Europe, on the right to conscientious objection will be explored. The Recommendations of the Committee of Ministers The Committee of Ministers (hereafter “the Committee”) functions as the Council of Europe’s decision-making body.111 In collaboration with the PACE, the Committee serves as the guardian of the Council of Europe’s fundamental values and, most importantly, it serves as the guardian of their undertakings,112 ensuring that they comply with the judgments of the ECtHR.113 Indeed, the Committee of Ministers exists to supervise the execution of payment of compensation awarded by the ECtHR. In previous judgments the Court has stated that in addition to paying compensation supervised by the Committee of Ministers, Member States have the obligation to enact the necessary general and/ or personal measures in domestic law to end the violation in question and to remove the consequences of the violation.114 In that respect, it should be noted that the Committee completes each case investigated by adopting a final resolution.115 If Member States do not comply with the judgments of the Court, the Committee may apply grave political sanctions as provided for in the Statute of the Council of Europe.116 Apart from the obligation to supervise the execution of Court judgments (Article 46(2) of the ECHR), the Committee of Ministers also takes measures such as the conclusion of conventions or agreements and the introduction of common policy by governments in line with the aims of the Council of Europe, on the recommendation of the Parliamentary Assembly of the Council of Europe or on its own initiative, in accordance with Article 15 of the Statute of the Council of Europe.117

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Despite the Committee’s refusal to take action following the recommendation of the PACE in 1967 and 1977, it eventually adopted, in 1987, Recommendation no. R (87)8 regarding the right to conscientious objection.118 The Committee invited the governments of Member States, where they had not already done so, to bring their national legislation and practice into line with the following Basic Principle: Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service, on the conditions set out hereafter. Such persons may be liable to perform alternative service.119 (emphasis added)

Notably, in an attempt to avoid conf lict with the previous Committee decisions, this recommendation did not refer directly to Article 9 of the ECHR.120 However, Decker and Fresa argues that the ECHR’s definition of “conscientious objector” could be logically inferred from Article 9, owing to the fact that the aforementioned “Basic Principle” included the phrase “compelling reasons of conscience.”121 The recommendation also set out the procedure for establishing conscientious objection status and supports the provision of alternative service.122 The Committee explains the meaning of alternative service in paragraph 9 as follows: Alternative service, if any, shall be in principle civilian and in the public interest. Nevertheless, in addition to civilian service, the State may also provide for unarmed military service, assigning to it only those conscientious objectors whose objections are restricted to the personal use of arms.123

In contrast to the PACE Resolution no. 337 of 1967 and Recommendation no. 816 of 1977, Recommendation no. R (87)8 of 1987 makes no reference to specific motives for claiming the right to conscientious objection.124 In addition, whereas the earlier Resolution no. 337 of 1967 and Recommendation no. 816 of 1977 had explicitly proclaimed that “[t] his right shall be regarded as deriving logically from the fundamental rights of the individual in democratic rule of law states, which are guaranteed in Article 9 of the European Convention on Human Rights,”125 this later Recommendation (R (87)8) makes no such statement simply because the ECtHR case-law and the Member States at the time of this report did not recognize the right to conscientious objection as a human right.126

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Nevertheless, the Ministers pronounced categorically that all conscripts are entitled to release from the obligation to perform military service if they “refuse to be involved in the use of arms” on the grounds of “compelling reasons of conscience.” On examining the language closely, it can be seen that Recommendation no. R (87)8 focuses on individuals who refuse to “use” arms “for compelling reasons.” By employing the word “compelling” the Ministers intended to exclude conscientious objectors in the “selective” category whose objection is limited to particular kinds of arms.127 In addition, the Explanatory Report to the Recommendation focuses on the deliberate choice of the term “use of arms” rather than the Human Rights Committee’s (HRC’s) “lethal force.”128 It explains that the term of “use of arms” could possibly denote a more limited basis for conscientious objection. “Lethal force,” according to the HRC’s General Comment, might cover more general military actions including those not involving the use of arms, such as military maneuvers.129 Recommendation no. R (87)8 also considers what the phrase “reasons of conscience” might imply.130 The Explanatory Report to Recommendation no. R (87)8 calls for all reasonable grounds of conscience that are against the use of arms to be taken into consideration in granting conscientious objector status.131 The report also recommends that states avoid employing too strict a definition or too limited an attitude as regards conscientious objectors.132 It should be noted that, given a broad interpretation, this recommendation could also apply to conscientious objectors in professional armies.133 The most recent recommendation takes into account international and regional developments on the right to conscientious objection. In 2010, the Committee adopted Recommendation CM/Rec. (2010)4134 concerning “the enjoyment of human rights and fundamental freedoms by members of the armed forces in the context of their work and service life.”135 It differs from Recommendation no. R (87)8 in that the Committee places the right to conscientious objection firmly within the framework of the right to freedom of thought, conscience, and religion.136 In contrast to Recommendation no. R (87)8, it recognizes the right to conscientious objection for professional soldiers pressed by their conscience.137 In conclusion, in 1987 and 2010 the Committee adopted two important recommendations, both calling on all Member States to recognize the right to conscientious objection and both recommendations support the provision of alternative civilian service for conscientious objectors. In 2010, the call was extended to cover professional soldiers, too.

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Although the Committee had been opposed to taking action on the PACE recommendations of 1967 and 1977, the adoption of the 1987 and 2010 recommendations show that it thenceforth recognized the right to conscientious objection, thereby demonstrating an evolution of the Committee’s position. It is clear from the above that the political mechanisms of the Council of Europe helped to clarify the scope and meaning of the right to conscientious objection in Europe. As pointed out above the Committee, as a mechanism that safeguards the fundamental values of the Council of Europe in accordance with Article 15 of the Statute of the Council of Europe, has clarified its stance regarding the right to conscientious objection. However, as mentioned above, the Committee also has a role in supervising the execution of Court judgments by states in line with Article 46(2) of the Convention. At this juncture it is important to see whether the judicial mechanisms of the Council of Europe (the European Commission of Human Rights and the European Court of Human Rights) have reached judgments pertaining to the right to conscientious objection, and if so, whether these judgments found a violation of the Convention. In that respect, it will be important to explore the interpretation of the judicial mechanisms of Council of Europe on the right to conscientious objection. The European Commission of Human Rights and the European Court of Human Rights—An Interpretation of the Right to Conscientious Objection to Military Service The ECHR created the Commission and the Court in order to ensure the observance of the engagements undertaken by the Contracting Parties.138 On November 1, 1998, the structure for taking applications under the Convention was changed in accordance with Protocol 11 under which, the part-time Commission and the Court were replaced by a single permanent Court. Following the institution of the new system, individuals could bring their complaints directly before the Court.139 With regard to freedom of thought, conscience, and religion in general and the right to conscientious objection in particular,140 individuals, nongovernmental organizations (NGOs) as well as other groups of individuals have been bringing cases (Article 34 of the ECHR) to the Commission and the Court since its inception in 1955 ; in the period up to 31 December 2012 the Court received more than 100,000 individual and group applications.141 The Commission which, until November 1, 1998, had been the initial recipient of cases for evaluation and referral to the Court, decided

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more than 45 reported cases involving rights of conscience under Article 9 of which only five were declared admissable.142 However, it was not until the Kokkinakis case, from Greece, in 1993 that the Court itself had the opportunity to address Article 9 issues squarely.143 Prior to the Kokkinakis judgment, the Court had not found that any government had violated an individual’s freedom of thought, conscience, and religion.144 In this particular case, the applicant was a retired businessman. In 1936 he joined the Jehovah’s Witnesses after which he was accused of proselytism and arrested more than 60 times, suffering numerous periods of imprisonment and internment.145 The applicant’s complaints mainly concerned a restriction on the exercise of his freedom of thought, conscience, and religion (Article 9) as well as Articles 7 and 10 of the ECHR.146 The Commission confirmed that the measures in question constituted interference under Article 9(1) of the Convention, which guaranteed the exercise of the applicant’s right to manifest his religion.147 The case was subsequently referred to the Court. The Court described its task as having to determine whether the measures taken at national level were justified in principle and whether they were proportionate under Article 9(2).148 The Court stressed that it was a general principle of Article 9 that: Freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia , freedom to “manifest [one’s] religion.” Bearing witness in words and deeds is bound up with the existence of religious convictions. According to Article 9, freedom to manifest one’s religion is not only exercisable in community with others, “in public” and within the circle of those whose faith one shares, but can also be asserted “alone” and “in private” ; furthermore, it includes in principle the right to try to convince one’s neighbour, for example through “teaching,” failing which, moreover, “freedom to change [one’s] religion or belief,” enshrined in Article 9, would be likely to remain a dead letter.149

Following this explanation of the general principle of Article 9, the Court agreed with the Commission that Article 9 had been violated. The reason for both the Court and the Commission’s decision was that

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the applicant’s sentencing to prison by the Greek authorities had not been justified by a pressing social need within the circumstances of the case, in the light of Article 9(2).150 In the Kokkinakis case, the Court referred to the acceptance of freedom of thought, conscience, and religion as “one of the foundations of a democratic society.”151 The significance of this case in relation to Article 9 resides in the recognition that states are prohibited from interfering in the forum internum , which is “largely exercised inside an individual’s heart and mind.”152 As specified by Murdoch, the protection of an individual’s freedom of thought, conscience, and religion begins with his/her absolute right to have or to change beliefs. Even in time of war or national emergency this right cannot be restricted by the state. This protection of the forum internum , enshrined in Article 9, aims to forestall any state brainwashing of citizens, encouraging, instead, the advancement and elevation of ideals, conscience, and religion.153 Naismith concurs that the existence of the concept forum internum provides protection for the individual from being pressurized into changing what he or she believes in.154 This judgment also noted that, under Article 9(2) of the ECHR, relating to freedom of thought, conscience, and religion states may only interfere in the forum externum if they are able to justify the interference.155 In that respect, the Court believed: “[s]uch an interference is contrary to Article 9 unless it is ‘prescribed by law,’ directed at one or more of the legitimate aims [public safety, for the protection of public order, health, or morals, or for the protection of the rights and freedoms of others] in paragraph 2 [of Article 9] and ‘necessary in a democratic society’ for achieving them.”156 At the same time, Article 9 allows for the imposition of an obligation on the state to take positive measures to ensure respect for individuals’ rights to freedom of thought, conscience, and religion.157 With regard to the right to conscientious objection in particular, the Court and Commission have dealt with a number of cases of conscientious objection that are closely related to the concepts of forum internum and forum externum found in Article 9. The issues in these cases have revolved around the conf lict between the conscientious objector on the one hand, who argues that the State has no place in the inviolable personal sphere; and the State, on the other hand, which avers that it may interfere with the external manifestation of religion or belief in certain circumstances. In the case-law of the Court and the Commission, this issue remained obscure and therefore controversial until the Bayatyan judgment of the “Grand Chamber”158 on July 7, 2011.159

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Case-law on the Right to Conscientious Objection to Military Service Early Applications: Article 4(3)(b) as an Exception to Article 9 The first Commission case on conscientious objection was Grandrath v. the Federal Republic of Germany in 1966.160 Here, a Jehovah’s Witness refused to perform both military and alternative civilian services on grounds of his religion and conscience. His application was granted for exemption from military service, but he was still required to perform alternative civilian service to which he also objected. As a consequence, he received an eight-month prison sentence.161 The applicant claimed that failure to exempt him from alternative civilian service was a violation of Article 9 of the Convention.162 The German Government argued that the right to be exempted from military service or alternative civilian service was not guaranteed by Article 9(1) of the Convention.163 The Commission examined two aspects of the question of whether a violation of Article 9 had taken place, namely: a) whether the alternative civilian service which Grandrath was required to perform would have restricted his right to manifest his religion; b) whether Article 9 had been violated by the mere fact that Grandrath had been required to perform alternative civilian service which was contrary to his conscience or his religion.164 With regard to the first aspect, the Commission held that the applicant’s right to manifest his religion would not be restricted by the alternative civilian service.165 For this reason, according to the practice of the German authorities in regard to Jehovah’s Witnesses, he would presumably have been allowed to perform service in his home town and, while performing such service, he would have had the right, under Article 18 of the Act on Substitute Civilian Service, to do such outside work as did not interfere with the service required of him.166

The Commission asserted that in order to understand the second aspect it would be advantageous to examine Article 4(3)(b) of the Convention. In effect, the Commission held that As in this provision it is expressly recognised that alternative civilian service may be imposed on conscientious objectors as a substitute for military service, [therefore] it must be concluded that objections of

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conscience do not, under the Convention, entitle a person to exemption from such service.167

In sum, the Commission reached the conclusion that there was no need to look at the interpretation of the term “freedom of conscience and religion” as used in Article 9 of the Convention, finding that there had been no violation of this article when considered separately from Article 4(3)(b).168 There were, however, two individual opinions submitted in this case. As the only member of the Commission to dwell on the link between Articles 4 and 9, Commissioner Eustathiades argued that Article 4(3) (b) did not impede the application of Article 9. He underlined the view that the applicant’s religious beliefs did not prevent him carrying out alternative civilian service. He felt that the question as to whether there had been a violation depended, partly, on the limitations in Article 9(2), which should be interpreted according to a “margin of appreciation.” He added that some Member States had no legal provision for conscientious objectors, and then underlined that each member State may decide whether or not to recognize such a right owing to the margin of appreciation, which was extended by Article 4(3)(b). Taking into consideration the limitations of Article 9(2) and the margin of appreciation allowed the Member State, he concluded that it was not at all clear that there had been a violation of Article 9.169 The second individual opinion, from Commissioner Ermacora, argued that there was no need to consider Article 4 at all. He held that Article 9 should be read in its entirety, and he reminded the Commission that Article 9(2) restricts freedom of thought, conscience, and religion. It was his opinion that the protection of public order as a legitimate aim therefore permits states to make military service compulsory. If they prefer to allow their citizens to be exempted from military service they may still require citizens to perform alternative civilian service, compatible with Article 9.170 Subsequent decisions by the Commission dealing with the issue of conscientious objection relied especially on the Grandrath case as a precedent for refusing to recognize the right to conscientious objection as falling under Article 9 of the Convention. For instance, in the cases of X v. Austria , X v. the Federal Republic of Germany, Autio v. Finland, and X v. Belgium , the Commission established that Article 9 of the Convention did not guarantee the right to conscientious objection.171 The Commission stated that neither did the ICCPR recognize the right to conscientious objection nor did it emphasize that this right

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would not be recognized within the framework of freedom of thought, conscience, and religion. Evidently, it believed that the right to conscientious objection was not an element of the freedom of thought, conscience, and religion.172 However, a significant point to highlight is that in the cases of Autio v. Finland and Julin v. Finland , the Commission admitted that both military and alternative civilian services imposed a heavy burden upon individuals, but added that Article 9 of the Convention did not, in itself, guarantee the right to conscientious objection.173 The reason for this refusal, as illustrated by the Commission in A v. Switzerland , is because Article 4(3)(b): does not give conscientious objectors the right to exemption from military service, but leaves each contracting state to decide whether or not to grant such a right. This being so, neither the sentence passed on the applicant for refusing to perform military service nor the fact of its not being suspended can constitute a breach of Article 9 of the Convention.174

With A v. Switzerland decision, the Commission did not adopt a different stance to its previous decisions. Instead, it reiterated that the Convention did not recognize the right to conscientious objection and that it was at the discretion of states whether or not to recognize it. Applications Arguing Violation of the Prohibition of Discrimination (Articles 9 and 14) As illustrated above, the majority of cases concerned the right to conscientious objection involving total objectors who objected to performing both military service and alternative service (including unarmed military service and alternative civilian service). By insisting that the right to conscientious objection is not recognized in Article 9 of the Convention, the Commission conceded that, in accordance with Article 4(3)(b) of the Convention, states had the freedom to choose whether or not to recognize this right. However, in subsequent cases, applicants’ claims relied upon an approach that focused on discriminatory treatment, regarding different wages for soldiers and conscientious objectors, longer periods of alternative civilian service175 and being forced to perform military and alternative civilian services against a comparator group such as Jehovah’s Witnesses.176 In illustration, in one of the earlier decisions from the Commission, Conscientious Objectors v. Denmark,177 the applicants claimed to have been victims of discrimination. Under Danish Law,178 regulations on

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commissariat, provisioning and wages for military draftees, and conscientious objectors performing alternative civilian service had once been identical. However, draftee wages were raised in April 1976 and a law (Statute no. 289) allowing lower wages for conscientious objectors was passed in June 1976.179 Thus, the applicants alleged that there had been a violation of Article 14 in conjunction with Articles 4 and 9. The Commission declared their application inadmissible. It held instead that: No right to payment of wages, either for soldiers or for objectors—and still less the right to any level of pay or equality of pay—is as such included among the rights and freedoms guaranteed by the Convention . . . Furthermore, the right of conscientious objection is not included among the rights and the freedoms guaranteed by the Convention. In this respect, the Commission refers to its previous decision on the admissibility of Application No. 5591/72 (Coll. 43, p. 161) in which it held that Article 9, as qualified by Article 4 (3)(b) of the Convention, does not impose on a State the obligation to recognise conscientious objectors. The discrimination of which the applicants complain does not therefore concern the enjoyment of any of the rights and freedoms set forth in the Convention and no issue arises under Article 14.180

Then the 1990s saw a number of Article 9 and 14 cases related to whether the duration of alternative civilian service was unjustly longer than for military service. For instance, in Autio v. Finland ,181 the author claimed that his right to freedom of thought, conscience, and religion had been infringed by the discriminatory, longer duration of alternative civilian service than military service.182 The Commission noted that the burden imposed on citizens by compulsory military service is acceptable provided it is fairly shared and that exemptions are based on solid grounds. The Commission further noted that the ratio legis of the 1985 Act (Act. no. 647/85, the Act on the Temporary Amendment to the Act on Unarmed and Civilian Service) introducing this difference in duration was explained in the relevant Parliamentary Bill, as follows: As the convictions of conscripts applying for alternative civilian service will no longer be examined, the existence of these convictions should be ascertained in a different manner so as not to let the new procedure encourage conscripts to seek an exemption from armed service purely for reasons of personal benefit or convenience. Accordingly, an adequate prolongation of the term of such service has been deemed the most appropriate indicator of a conscript’s convictions.183

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The Commission was satisfied in the case of Autio that “the differential treatment in question pursued a “legitimate aim.”184 In conclusion, the Commission found that, when taken together with Article 9, the differing lengths of service did not violate Article 14. In arriving at this decision, the Commission took into account the conscientious objectors’ view that the longer alternative civilian service was unreasonable but it highlighted the fact that objectors had been thereby relieved of the obligation to subject themselves to a formal examination of their motives for objection.185 There were also cases in which applicants related their subjection to conscription to a comparator group that was exempt from all forms of military and alternative civilian services. The applicants argued that the exemption for only the comparator group invoked Article 14 of the Convention.186 In Raninen v. Finland ,187 the applicant was a student and executive manager of the Union of Conscientious Objectors. He, as a total objector, was subjected to repeated detentions on remand as well as to numerous interrogations. He complained under Article 14 of the Convention that he had been subjected to discrimination for having consistently refused to perform either military or alternative civilian service. The applicant believed that he had suffered discrimination because, although Jehovah’s Witnesses are exempted under Finnish law from performing military or alternative civilian service, this exemption had been denied him as a non-Jehovah’s Witness.188 The Commission held that The Commission has examined this aspect of the complaint under Article 14 of the Convention in conjunction with Article 9. It has previously noted that membership of Jehovah’s Witnesses entails adhering to a comprehensive set of rules of behaviour which cover many aspects of everyday life and require, inter alia, the rejection of both military and substitute service [alternative civilian service]. There is a strict informal control among Jehovah’s Witnesses that these rules are complied with. Membership of such a religious sect is thus an objective fact which creates a high degree of probability that exemption from military and substitute service is not granted to persons simply wishing to escape service, since it is unlikely that a person would join such a sect only for the purpose of not having to perform any service of the above-mentioned kind (the above-mentioned No. 10410/83, loc. cit.).189 [ . . . ] In these specific circumstances and having particular regard to the State’s margin of appreciation, the Commission can accept that the differential treatment of the applicant was objectively and reasonably justified. Accordingly, it cannot find any appearance of a violation of Article 14 of the Convention read

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in conjunction either with Article 9 of the Convention or with Article 4 of Protocol No. 7.190

In the 1990s, the Commission and the Court also dealt with several Greek cases. In these cases, the Court repeatedly avoided any discussion of the right to conscientious objection in the context of Article 9 prefering to place the issue under other headings. For instance, in Tsirlis and Koulompas v. Greece,191 it appeared that Jehovah’s Witnesses’ ministers were not exempted from military service, whereas clergy members of other religions were.192 The Commission found a violation of Article 14 in conjunction with 9;193 but also found that it was unnecessary to examine Article 9 alone.194 Commissioner Liddy delivered a partially dissenting opinion on this issue. In her view, the issue of conscientious objection fell under Article 9: First, the savers in Article 4 are for the purposes of the right specifically guaranteed by Article 4. Second, the Convention does not purport to recognize that States may arbitrarily impose compulsory military service or alternative [civilian] service. The Court has found a violation of Article 14 in conjunction with Article 4 para. 3(d) where a financial burden ensuing from provision for compulsory service in the fire-brigade involved a difference of treatment on the ground of sex (Schmidt v. Germany, Judgment of 18 July 1994, Series A, Vol. 291). Third, the Commission in the above-mentioned case had been of the opinion that there had also been a violation of Article 14 in conjunction with Article 1 of Protocol No. 1. In the event, the Court did not find it necessary to examine the complaint. This represents a significant evolution of the law since the Grandrath Case: neither the Commission nor the Court adopted the view that the saver in Article 4 para. 3(b) had the effect of rendering Article 1 of Protocol No. 1 inapplicable. Fourth, the formulation of Article 4 para. 3(b) (“any” service of a military character, “in case of conscientious objectors in countries where they are recognised”) makes it clear that the framers of the Convention did not assume that every country had a need for compulsory military service, but allowed (without prejudging any issue under other provisions of the Convention) for the fact that not every country gave recognition to conscientious objectors.195

Commissioner Liddy finally announced that Article 9 contains no express saver for compulsory military or alternative [civilian] service in its first paragraph, notwithstanding the recognition in Article 4 para. 3(b) that questions of conscience could arise concerning

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military service, and notwithstanding the deliberate insertion of a third “saving” sentence in the first paragraph of Article 10.196

The similarity of Mrs. Liddy’s opinion to the views of Commissioner Mr. Eusthadiades, who had been one of those presenting an opposing opinion in the Grandrath case, has not evaded notice and it is clear that Mrs. Liddy’s considerations are an extension of Mr. Eusthadiades’s opinion. Mrs. Liddy’s views are consistent with Article 31(1) of the Vienna Convention on the Law of Treaties, under which “a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its objects and purpose.”197 Mrs. Liddy was arguing here that the right to conscientious objection should be accepted as a fundamental aspect of the right to freedom of thought, conscience, and religion, as envisaged in the objectives and purpose of the Convention. As will be seen in the subsequent section, her opinion has also been taken into consideration by other institutions of the Council of Europe.198 In addition, with Mrs. Liddy’s first point about the savers in Article 4 being relevant only to that article, she emphasized that, in order to ensure personal freedom, the content of Article 4 should not be associated with Article 9.199 However, in spite of Liddy’s views, the Court continued the practice of examining Article 4(3)(b) together with Article 9 until the judgment of the Grand Chamber in the case of Bayatyan v. Armenia on July 7, 2011. The ECtHR had been examining the two articles together because of the wording of Article 31(2) of the Vienna Convention which makes the entire ECHR part of the context. 200 This is also how the Court approached other issues, such as the death penalty, where the Court has interpreted Articles 2 and 3 in conjunction. 201 The crucial point is how the Court had been able to interpret the effect of Article 4 on Article 9 until the judgment of Bayatyan . The Court’s justification was that Article 4(3)(b) granted the state’s discretion as regards whether to recognize the right to conscientious objection. However, it is abundantly clear that the Court should have taken into consideration developments in international law and that of Member States concerning the right to conscientious objection. In addition, the ECHR preamble should be read together with other convention articles such as Article 9. The preamble states that the members of the Council of Europe consider that “the aim of the Council of Europe is the achievement of greater unity between its members and that one of

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the methods by which that aim is to be pursued is the maintenance and further realization of human rights and fundamental freedoms.” The preamble calls on states: “to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration [of Human Rights].” In its case-law the Court has noted that the Convention needs to be seen as a treaty of a special character brought into being in order for human rights and fundamental freedoms to be implemented in unison. 202 This means that the “object and purpose” of the Convention is the “practical and effective protection of individual human beings” and the maintenance and promotion of the “ideal and values of a democratic society.” 203 Until Bayatyan , when the Court changed its approach to conscientious objection, Mrs. Liddy was not alone in pushing for a fundamentally new interpretation of Article 9: soon after her dissenting opinion, an uneasiness on conventional policy on conscientious objection could be observed in the Commission, particularly evident in Thlimmenos v. Greece. 204 This case illustrates a serious dilemma as regards the limits of the right to freedom of religion in states where military service is imposed on citizens. 205 Thlimmenos is a representative case concerning a Jehovah’s Witness who was convicted as a criminal for refusing to wear a military uniform. His refusal was owing to his religious beliefs; his crime was nevertheless considered serious. Later, he applied for the post of chartered accountant but was rejected because of his previous criminal conviction. 206 The Grand Chamber, on examining the applicant’s case, deemed it unnecessary to seek to establish putative interference on the part of the authorities regarding the link between the criminal conviction and the job rejection, possibly leading to an infringement of the applicants’ rights under Article 9(1). 207 Neither did the Grand Chamber concern itself with investigating, under Article 9, the complaint dealing with the criminal conviction. 208 Instead, it went on to find a violation of Article 14 taken in conjunction with Article 9 on the grounds that the State had failed to treat the applicant, whose conviction was provoked by his religious beliefs, differently from other persons who had actually been convicted of serious crimes. 209 The Grand Chamber’s unanimous decision not to examine the incident in question under Article 9 is, in fact, in line with decisions made by the Commission. 210 However, the Grand Chamber did find that Article 14 taken in conjunction with Article 9 had been violated. 211 Although the Grand Chamber did not discuss whether there had been a

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violation of Article 9 on its own, at least some reference was made to it seeing that conviction of the applicant constituted interference with his right to manifest his religion. 212 However, at the Commission stage of the case, partially dissenting opinions had been delivered by six Commissioners213 and one Commissioner, Alkema had a separate concurring opinion regarding this particular decision, adopting Commissioner Liddy’s reasoning as outlined above and developing it further. 214 He found the reasoning of the other six members “attractive for its cogent plea to derive a right to invoke conscientious objections against military service from Article 9 of the Convention.” 215 Concurring in this opinion, he declared that it can be observed that other international bodies have strongly recommended the recognition of the right to conscientious objection against military service, sometimes considering it as inherent in freedom of religion. Reference can be made to Resolution R (87)8 of the Committee of Ministers of the Council of Europe and to Resolution 1989/59 of the Commission on Human Rights of the United Nations. Apparently a similar idea has in the meantime led to the adoption by the Greek Parliament of Law 2510/1997. 216

Commissioner Alkema continued as follows: Especially relevant is also the General Comment no. 22(48) of the UN Human Rights Committee on Article 18 para. 11 of this instrument. The Committee expressed the belief that a right to conscientious objection could be derived from Article 18 of the Covenant. It added that when this right has been recognised “there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs.” In connection with the other separate opinion [partially dissenting opinion of Mr C. L. Rozakis, Mrs. J. Liddy and M. M. B. Marxer, M. A. Nowicki, B. Conforti, and N. Bratza] it is worth noting what the Court found in para. 47 of its Manoussakis v Greece judgment of 26 September 1996, Reports 1996-IV, p. 1365: “The right to freedom of religion guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate.” This clearly implies that the authorities ought to be cautious in determining the legitimacy of, and even more so in penalising, any practice and observance based on religious or philosophical convictions. In this context it is to be noted that the refusal of Jehovah’s witnesses to exercise military service is a well-known and generally recognised element of their religious practice. 217

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Because conscientious objection was recognized as a right under Article 18 of the ICCPR, the point in this concurring opinion meriting most attention is its reference to the Human Right Committee’s General Comment no. 22. In fact Alkema’s opinion, closely following developments in international law, was in harmony with Article 31(3) of the Vienna Convention on the Law of Treaties, which draws attention to the following matters that need to be taken cognizance of: a. Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; b. Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; c. Any relevant rules of international law applicable in the relations between the parties.

These principles are also in harmony with other ECtHR case-laws. In that respect, the Court is obliged to take into consideration the special character of the Convention as a human rights treaty that should not be interpreted in a vacuum but should be interpreted in line with the other rules of public international law.218 For this reason the Court must have regard to the implementation of the Convention and other international law standards in conformation with the object and purpose of the Convention.219 By its judgment in Tyrer v. the UK, 220 the Court made clear that it is in harmony with the interpretation of the Convention according to present-day conditions. As highlighted by Decker and Fresa, the principle of harmonization affords the Court the chance to interpret the Convention progressively and consolidate the safeguarding of rights.221 Applications Arguing a Violation of the Prohibition of Degrading Treatment (Articles 9 and 3) In a 2006 conscientious objection case— Ülke v. Turkey222 —the Court decided not to examine the complaint under Article 9 separately. The case is important, because first, as Boyle 223 explains; “[a]lthough the European Court of Human Rights had in later cases moved close to recognizing that actions motivated by objection to war or pacifist beliefs are within the scope of the protections of Article 9, it had never previously been faced with the question directly as in the Ülke case.” 224 Secondly, it was the first time that the Court found a violation of Article 3 in relation to the issue of conscientious objection. In the case of Ülke v. Turkey, the applicant, Osman Murat Ü lke, was sentenced to a penalty of 701 days imprisonment in total (with

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intervals) eight different convictions. As there is no specific provision in Turkish law governing penalties for conscientious objectors, 225 he was also forced to go to court 11 times between 1996 and 1999. 226 Ü lke’s lawyers argued that Articles 3, 5, 8, and 9 had been violated. 227 However, the Court decided to examine the applicant’s complaint concerning his multiple convictions from the angle of Article 3228 and found a violation of this Article on the grounds that his multiple convictions might provoke a feeling of fear and anguish in the applicant, capable of humiliating and debasing him and breaking his will.229 On January 5, 2006 the Court ruled: In the present case, the numerous criminal proceedings brought against the applicant, the cumulative effects of the ensuing criminal convictions and the constant alternation between prosecution and imprisonment, together with the possibility that he would face prosecution for the rest of his life, are disproportionate to the aim of ensuring that he performs his military service. They are aimed more at repressing the applicant’s intellectual personality, inspiring in him feelings of fear, anguish and vulnerability capable of humiliating and debasing him and breaking his resistance and will. The clandestine life, amounting almost to “civil death,” which the applicant has been compelled to adopt is incompatible with the punishment regime of a democratic society. 230

In this judgment, the Court affirmed that repeated imprisonment for offences deriving from the beliefs of conscientious objectors was not justified. Brett and Townhead make the following comment with regard to this: “By placing limitations on the punishments that states can mete out to those who refuse to be compelled to perform military service for reasons of conscience, the Court has begun to involve itself in governing the manner in which states can and cannot treat conscientious objectors.” 231 As a result, although the Court did not examine the right to conscientious objection within the framework of Article 9, it established a connection between a person’s intellectual personality and the applicant’s belief, pointing out that this connection had been violated by the endless vicious circle of military prison—military court—military unit, reaching the judgment that Article 3 had been violated. 232 Despite having to confront the issue of conscientious objection directly, as in the Ülke case, the Commission and the Court did not find any violations of Article 9 in other conscientious objection cases owing to the hindrance posed by Article 4(3)(b). Instead, they chose

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to analyze these cases in the light of other Articles of the Convention, such as Article 14 and Article 3. As Brett and Townhead state, “[u]nfortunately, the Court declined to address the question of whether forcing Ü lke to perform military service had been a legitimate aim for the state to pursue given his conscientious objection.” 233 Thus, the Court’s position in relation to conscientious objection in terms of Article 9 remained unclear until the Grand Chamber’s 2011 judgment in the case of Bayatyan v. Armenia 234 in which it overruled the Commission and the Court’s previous case-law on the right to conscientious objection. It shoud be noted that the applicant, Bayatyan, applied to the Grand Chamber because the ECtHR (as a Chamber), in the 2009 judgment, 235 had failed to find a violation of Article 9. The applicant was a Jehovah’s Witness 236 who refused to perform military service at a time when no alternative service was available in Armenia. 237 Having served about tenand-a-half months of his 18-month sentence, 238 Bayatyan complained that his conviction violated his right to freedom of thought, conscience, and religion (Article 9). 239 He claimed that the Court should interpret Article 9 in the light of present-day conditions, including the fact that the majority of Council of Europe Member States had recognized the right to conscientious objection. 240 The Court at first noted in its judgment that it was, legitimate to take account of the fact that the majority of the Council of Europe Member States had adopted laws providing for alternative civilian service for conscientious objectors. 241 However, the Court held that since this Article [4(3)(b)] 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 evaluative 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. 242

The dissenting opinion of Judge Power considered the recent development in attitudes to conscientious objection at both an international and regional level in the light of the “living instrument” doctrine. 243 The Judge emphasized that the majority finding was not only incompatible with current European standards, but that it was also not in

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harmony with the Court’s case-law. 244 Furthermore, she looked at the proportionality issue stating that The substantive rights under Article 9(1) remain and any permitted interference with the freedom to manifest one’s religion or belief must be shown to be justified as “necessary” for the protection of the public interests listed in 9(2) (none of which, incidentally, includes the interests of national security). 245

Judge Power’s opinion parallels those of Mr. Eusthadiades and Mrs. Liddy who had also maintained that the refusal to carry out either military or alternative civilian service was a manifestation of belief, and that this constituted the forum externum aspect of the freedom of belief, which would generally be subject to the limitations of Article 9(2). 246 Furthering her argument, Judge Power stated that an individual’s refusal to perform military or alternative civilian service may only be restricted for the protection of the public interests listed in Article 9(2). She reminded the Court that: The Court has consistently held that a margin of appreciation which a state enjoys in assessing whether and to what extent interference is necessary goes hand in hand with European supervision covering both the legislation and the decisions applying it. 247 When carrying out that supervision, the Court must ascertain whether the measures taken at national level are justifiable in principle and are proportionate 248 and it must look at the impugned judicial decisions against the background of the case as a whole 249. 250

She added that Article 9(2) does not cite national security as a legitimate aim, despite its direct link to military service, 251 emphasizing that any restrictions imposed must be necessary to the maintaining of a democratic society. 252 In this respect, she pointed out: The respondent state in this case has offered no justification as to what, if any, “pressing social need” existed which necessitated the incarceration of the applicant in the particular circumstances of this matter. 253 The onus was on that state to demonstrate this necessity, all the more so in circumstances where it had already confirmed its recognition of and commitment to current European standards in this area. It has not established that the applicant’s imprisonment was necessary, thus failing the proportionality test, and this failure confirms me in my view that there has been a violation of Article 9. Insofar as the majority did not carry out

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the supervisory function reserved to this Court, its approach, it seems to me, is not consistent with the Court’s practice in interpreting the necessity of state interference with a protected Convention right. 254

In sum, in the Bayatyan Chamber judgment the Court ignored the decisions of the HRC and other international documents and practice on the right to conscientious objection despite the fact that the applicant had stressed the significance of Opinion no. 221 (2000) of the PACE, the Recommendation no. 1518(2001) of the PACE, and Article 10(2) of the Charter of Fundamental Rights of the European Union. 255 The Court did not consider the right to conscientious objection under Article 9 and failed to find a violation. Recent Judgments After the Chamber judgment of 2009 the applicant, joined by NGOs having an interest in the right to conscientious objection, appealed to the Grand Chamber. 256 The fact of the Grand Chamber’s dealing with the right to conscientious objection for the first time, on July 7, 2011, solely in the light of Article 9, indicates a radical change in attitudes since 1966, when the first case concerning this right was examined. The Grand Chamber began by examining the Commission’s viewpoint in the past conscientious objection cases. It touched on cases such as Grandrath, which was the first case examined by the Commission in this regard (see above). The Grand Chamber proclaimed that in these cases the Commission had reached verdicts to the effect that the right to conscientious objection was not safeguarded by the Convention. The Grand Chamber thereby endeavored to find an answer to the question as to whether it is necessary to change the case-law in question, drawing attention to recent significant developments both internationally and in the domestic legal systems of Council of Europe Member States. 257 In that respect, the Grand Chamber underlined that the Convention is not theoretical, but should be interpreted in a way that ensures its rights are implemented effectively. 258 In other words, the Grand Chamber emphasized that the Convention is “a living instrument” that “must be interpreted in the light of present day conditions.” 259 In accordance with this understanding the Grand Chamber was primarily guided by developments in current, commonly accepted standards of the Member States of the Council of Europe. The Grand Chamber took into account the current practice (regional custom) of the majority of the Member States in providing for the right to conscientious objection, stating that “already at the material time there

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was nearly a consensus among all Council of Europe Member States, the overwhelming majority of which has already recognized in their law and practice the right to conscientious objection.” 260 Furthermore, the Grand Chamber took into consideration the development of the right to conscientious objection in international human rights law. 261 In the light of significant developments in international law as well as in the Council of Europe Member States and in line with the “living instrument” approach, the Grand Chamber stressed that Article 9 should no longer be applied in conjuction with Article 4(3)(b). It thereby held that it was necessary for the case-law of the Commission to be changed, stating that an applicant’s complaint was to be evaluated under Article 9 alone. 262 The Grand Chamber, while pointing out that Article 9 of the Convention does not clearly enunciate the right to conscientious objection, held that: It considers that opposition to military service, where it is motivated by a serious and insurmountable conf lict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9. 263 Whether and to what extent objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case. 264

Since the applicant, Bayatyan, was a Jehovah’s Witness, there was no reason to doubt that his objection to military service was based on genuinely held religious beliefs, which presented a serious and insurmountable conf lict with his obligation to perform military service. 265 The Grand Chamber drew attention to the fact that although the applicant had expressed his wish to perform alternative civilian service, at the time when the case was lodged there was no alternative civilian service available in Armenia. 266 In fact, the Grand Chamber’s emphasis of this point indicates that the applicant was not attempting to evade military service and that by risking prosecution genuinely held religious beliefs were being tested. At this juncture it will be useful to dwell on how the Court tests the sincerity of belief. In previous judgments the Court has held that when testing genuinely held religious beliefs the necessity of the belief having sufficient cogency, seriousness, cohesion, and importance is shown. Also, as the Court maintained in its Arrowsmith judgment, in the event the belief is not articulated it cannot benefit from the protection of

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Article 9. In other words, it is necessary that there is a real connection between an action and belief. 267 In the case in question the Grand Chamber concluded that the applicant had a sincerely held belief. Since the prevention of abuse of the rights and freedoms enshrined in the Convention is one of the duties of the Court, it is understandable that the Court put the sincerity of a belief to the test. Hence, it is necessary to prevent individuals justifying their actions by taking refuge in this article. However, there is some doubt as to whether this test would be used to ascertain the sincerity of the belief of a conscientious objector with personal or nonreligious beliefs who refused to perform alternative civilian service in a country where such services exist. Every belief contains its own characteristics and manifests itself differently. On this point there will be a problem making a connection between belief and actions. In the case, Bayatyan, the connection was easy as the applicant was a Jehovah’s Witness. But, as mentioned above, the implementation of such a test for personal or nonreligious beliefs is problematic. Returning to the Bayatyan judgment of the Grand Chamber, it held that there was no doubt that the applicant had genuinely held religious beliefs. The Grand Chamber also noted that in order to understand whether there had been a violation of Article 9 it was necessary to identify whether there had been State interference with the right as enshrined in the article and, if so, whether this was “necessary in a democratic society.” The Armenian government tried to justify its actions by insisting on the need to protect public order, implying that it was safeguarding the rights of others without discriminating against anyone on any grounds. 268 However, the Grand Chamber did not “find the Government’s reference to these aims to be convincing in the circumstances of the case, especially taking into account that at the time of the applicant’s conviction the Armenian authorities had already pledged to introduce alternative civilian service and, implicitly, to refrain from convicting new conscientious objectors.” 269 The Grand Chamber added that It, nevertheless, considers it unnecessary to determine conclusively whether the aims referred to by the Government were legitimate within the meaning of Article 9(2), since, even assuming that they were, the interference was in any event incompatible with that provision for the reasons set out below. 270

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The Grand Chamber went on to ask whether the interference was necessary in a democratic society. Before answering the question, the Grand Chamber stressed that freedom of thought, conscience, and religion was one of the foundations of such a society. Thus, freedom is of crucial importance both for those with religious belief and for atheists, agnostics, skeptics, and the unconcerned, and is safeguarded by Article 9. 271 In answer to the question on the necessity of state interference, the Grand Chamber made clear that state parties to the Convention had certain discretion as regards deciding whether and to what degree any interference was necessary. 272 The Grand Chamber pointed out that in determining the extent of the margin of appreciation it had to consider the importance of maintaining true religious pluralism, which is also essential for the existence of a democratic society. 273 The Grand Chamber also highlighted the need to consider any consensus or common values that had emerged from the practice of Member States. 274 In this context the Grand Chamber made clear that almost all the states of the Council of Europe had introduced alternatives to military service in order to prevent possible conf lict between military obligations and individual conscience. It added that any state failing to do so would have to demonsrate a “pressing social need” in order to justify interference with the right, and would have only a limited margin of appreciation. 275 The Grand Chamber pointed out that the applicant in this case had no option other than to reject military service and risk prosecution as there was no alternative civilian service available at that time. 276 Indeed, the applicant had told the authorities that he wished to perform his national service in alternative civilian service. 277 The Grand Chamber decided that the Armenian system failed to balance fairly the interests of the applicant with those of society in general. It thus found that the punishment of the applicant could not be deemed necessary in a democratic society when his conscience and beliefs had been considered. 278 The Grand Chamber pointed out that if the state provided the opportunity for minority groups, like the applicant’s, to serve society in a manner that accorded with their conscience, a stable pluralism would be ensured and religious harmony and tolerance in society would be supported. 279 In conclusion, the Grand Chamber found, by 16 votes to 1, that the imposition of a penalty on the applicant for exercising his right to conscientious objection constituted an unnecessary interference in a

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democratic society in the context of Article 9. 280 It therefore found that there had been a violation of the Convention. 281 Judge Gyulumyan, the national Armenian judge, dissented from the verdict, opposing the majority view that Article 9 should no longer be read in conjuction with Article 4(3)(b). 282 She also focused on the duty of the Court to protect existing rights, rather than create new ones. 283 One might question Judge Gyulumyan’s opinion, because it clearly fails to comply with the Court’s emphasis that the Convention is a living instrument that has to be interpreted in accordance with current conditions. Following this judgment the Court examined the subject again in Erç ep v. Turkey, 284 reaching its verdict on November 22, 2011. In this judgment, the Court did not stress the forum internum aspect of this right; instead, it found a violation of Article 9, in line with the Bayatyan judgment. This applicant, too, Yunus Erç ep, was a Jehovah’s Witness. Erç ep did not report for duty when called up for the first time in March 1998, and was was therefore regarded as a deserter. Every time he failed to report for duty when a new call-up period began, a prosecution was launched by the Military Court. Over 25 cases have been filed against the applicant who has received several prison sentences. 285 On May 7, 2004 the Military Court sent him to prison for 7 months and 15 days. He was released after 5 months. 286 On October 6, 2006, in line with Turkish legal reforms, deserters were considered to be civilians and the decision was made to continue the trials of these persons in the civil courts rather than the Military Courts. 287 The applicant claimed that Article 9 of the Convention had been violated on account of his being prosecuted for refusing to perform military service in each and every call-up period. 288 The Government argued that Article 9 should not be applied in this case. 289 The Court expressed that it had recently reviewed its case-law on the subject of the right to conscientious objection, making reference to the judgment of the Grand Chamber in the Bayatyan case. 290 The Court added that in the event of there being a serious and insurmountable conf lict between the obligation to perform military service and an individual’s profound convictions, the applicant had the right to freedom of thought, conscience, and religion as enshrined in Article 9. 291 The Court also took note of the situation in Member States of the Council of Europe, as it had done in the Bayatyan judgment. 292 The Court declared that Erç ep’s refusal to perform military service was undoubtedly due to his genuinely held religious beliefs. It highlighted

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the fact that Turkey imposes compulsory military service, and observed that no alternative option was available for those who did not want to perform military service on account of their religious beliefs. It was pointed out that objectors in Turkey faced a lifetime of criminal prosecutions and that this was a kind of “civil death,” as described in the Ülke judgment. 293 The Court added that countries like Turkey that do not recognize the right to conscientious objection and that do not provide alternative civilian service have only a limited margin of appreciation as regards any interference with Article 9. 294 In this case Turkey was expected to justify its interference as responding to a “pressing social need.” The Court found that it had not presented this justification. 295 The Court also noted that a system of compulsory military service constitutes a heavy burden for citizens.296 In conclusion, the Court held that it deemed such a situation to be incompatible with law enforcement in a democratic society. 297 The Court found that the multiple prosecutions of Erç ep on account of his beliefs, where no alternative civilian service existed, constituted a violation of Article 9. 298 In addition to Article 9, the applicant also claimed that there had been a violation of Article 6 of the Convention. First, he complained that his trial as a civilian by a military court constituted a violation of Article 6(1) of the Convention. Secondly, he complained that according to Article 6(1) of the Convention, the criminal proceedings against him were unfair. 299 The Court noted that although the applicant had been charged under the Military Criminal Code, he was, according to criminal law, a civilian. The Court also noted that in a Military Court judgment of October 13, 2008 a person is only considered a soldier when he reports to his regiment. The Court agreed that the applicant had reason to fear appearing before a Military Court, which might be unduly biased. In this context the Court accepted the applicant’s doubts regarding the independence and impartiality of these courts and found there had been a violation of Article 6(1).300 The Court also emphasized that the Government had not put forward any facts or arguments in favor of a different consclusion.301 With regard to the second complaint under Article 6(1) the Court found that it was unnecessary to examine separately the complaint of the alleged unfairness of the criminal proceedings, because the applicant’s arguments were based on the same facts that had already been examined in the first complaint.302

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In the same judgment, the Court made reference to the Committee of Ministers’ Resolution of March 19, 2009, which states that Turkey’s obligation is to make legal changes to definitely recognize the right to conscientious objection in the light of Article 46 of the Convention and to provide alternative civilian service for conscientious objectors. Due to the fact that, at the time of writing (October 2013), Turkey has not executed the judgment of ECtHR the Committee of Ministers continues to monitor its implementation.303 The Court, as with its conclusions in the Bayatyan and Erç ep judgments, found a violation of Article 9 in two more Amernian and four more Turkish cases. In the case of Bukharatyan and Tsaturyan v. Armenia 304 the applicants’ claims were almost identical to the facts in the Bayatyan case. The Armenian judge, Judge Gyulumyan, sitting at the Chamber continued to dissent and to repeat the same arguments that she expressed in the Bayatyan case. Another judgment of the Court on this subject was handed down on January 17, 2012, in Fethi Demirta ş v. Turkey.305 Similar to the case of Erç ep, the applicant, Fethi Demirta ş , was a Jehovah’s Witness, saying he wanted to fulfill his national service through alternative civilian service.306 The Court found a violation of Article 6(1) and 9 for the same reasons as in the Erç ep judgment.307 In addition, the Court emphasized that the fear of constant criminal convictions harmed the intellectual personality of the individual, making reference to the Ülke judgment in finding that this was serious enough to be considered inhuman and degrading treatment.308 The Court also stated that the applicant had been forced to wear military uniform while in prison, been bound to a bed or chair for long periods and been threatened and beaten. 309 It found that such circumstances caused the applicant to feel fear, anxiety, and to be humiliated, the object of this treatment being to break the individual physically and morally.310 In conclusion, the Court found there had been a violation of Article 3 of the Convention due to the pain and suffering inf licted on the applicant on account of his refusal to perform military service.311 Two of the judges (Mr. Sajó and Mr. Popović) expressed concurring opinions, saying that such an incident could be examined under Article 14. They pointed out that Jehovah’s Witnesses suffered discrimination and imprisonment on account of their religious beliefs as a minority and that this situation could lead to inhuman and degrading treatment.312 The Court reexamined this subject in its judgment in Savda v. Turkey.313 This case was not similar to the previous cases (e.g., Bayatyan,

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Erç ep, Bukharatyan, Tsaturyan, Fethi Demirta ş) in terms of the applicant’s belief. Instead, this applicant, Halil Savda, was not a Jehovah’s witnesses. He had avoided doing military service on account of being antimilitarist and a pacifist.314 He was sent to a military hospital, being tried four times for desertion and receiving three punishments for refusing to wear a uniform, until 2008 when he received an unfit report with the diagnosis of “anti-social personality.”315 The Court pointed out that Article 3 protected one of the fundamental values of democratic society, being a nonderogable right in time of war or in the case of another national emergency.316 It considered that the numerous criminal prosecutions and prison sentences amounted to “civil death.” It concluded that such a situation had caused serious pain and suffering and constituted a violation of Article 3.317 The Court, as in its conclusions in the Erç ep and Fethi Demirta ş judgments, found it reasonable that the applicant had been concerned about being tried in a military court by military judges. Since the applicant had legitimate fears regarding the impartiality and independence of that court, the Court found there had been a violation of Article 6(1).318 Regarding whether there had been a violation of Article 9, the Court followed the path it had taken in the Erç ep and Fethi Demirta ş judgment, also making reference to the Bayatyan judgment.319 Furthermore, the Court noted the fact that although in the Bayatyan , Erç ep, and Fethi Demirta ş cases the applicants were Jehovah’s Witnesses, in this case the applicant was a conscientious objector for pacifist reasons. On this point it was a moot point as to how far he would be protected by Article 9.320 While this was an appropriate question, unfortunately we cannot say that the Court answered it satisfactorily. Rather than answering this question the Court mentioned the positive obligations of the state, emphasising that authorities must provide an accessible and effective procedure that applicants for the right to conscientious objection may follow. It stated that since in Turkey there is neither this form of legal procedure nor alternative civilian service, a balance between the interests of society as a whole and that of conscientious objectors does not exist. The Court therefore concluded that there had been a violation of Article 9.321 The most recent judgment of the Court on this subject is the Tarhan v. Turkey judgment of July 17, 2012.322 Like Halil Savda the applicant, Mehmet Tarhan, announced he did not want to perform military service on account of his pacifist and

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antimilitarist convictions.323 The Court again concluded that there had been a violation of Article 3 and 9 for the same reasons as in the Erç ep, Demirta ş, and Savda judgments.324 Overall, it is clear from the foregoing case-law that, beginning with the Grand Chamber’s Bayatyan judgment, the Court has changed its jurisprudence on the right to conscientious objection. The Grand Chamber found in the Bayatyan judgment that the rejection of a person’s demand to be exempted from performing military service on the basis of his/her beliefs was “not necessary in a democratic society,” and a violation of Article 9 of the Convention.325 The same conclusion was reached by the Court in the case of Erç ep v. Turkey, Bukharatyan v. Armenia , Tsaturyan v. Armenia , Fethi Demirta ş v. Turkey, Savda v. Turkey, and Tarhan v. Turkey.326 These judgments represent the Courts first clear recognition of the right to conscientious objection under the Convention. The Court has thereby emphasized the necessity of respecting an individual’s right to conscientious objection within the context of respect for freedom of thought, conscience, and religion under Article 9. It has also maintained the Convention as a living document that is receptive to current needs.327 In ensuring a European consensus concerning the right to conscientious objection, the judgments hold a very important place. For, as seen above, while the political organs of the Council of Europe have recognized the right to conscientious objection for a long time, its judicial organ’s resistance on this point has created disharmony. With these judgments all the mechanisms of the Council of Europe share a consensus. Moreover, it is not just members of religious groups that can benefit from the right to conscientious objection; secular pacifist objectors can also benefit from the protection of Article 9.328 The Court’s complete change in its case-law relating to the right to conscientious objection since 1961 has come about as a result of judgments that considered more recent developments in international law. However, there is a question as to whether these judgments accord with the HRC ruling concerning the Republic of Korea, that: [t]he right to conscientious objection to military service inheres in the right to freedom of thought, conscience and religion. It entitles any individual to an exemption from compulsory military service if this cannot be reconciled with that individual’s religion or beliefs. The right must not be impaired by coercion.329

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In other words, freedom of conscience “is part of the right [to freedom of thought, conscience and religion] and not just a manifestation of religion or belief.”330 However, in its more recent judgments, the ECtHR has striven to answer the question of whether a state’s intereference in a democratic society was necessarily in line with Article 9(2). Consequently, the ECtHR only touched upon the forum externum of the right to conscientious objection in the recent judgments (Bayatyan , Erç ep, Bukharatyan , Tsaturyan , Fethi Demirta ş, Savda , and Tarhan). In that respect, it is unknown whether the Court will deal with the forum internum of the right in future cases.331 What is certain, however, is that if the Court develops its existing stance along the lines of the HRC view, it would remove the argument that the right to conscientious objection may be restricted in line with the legitimate aims enumerated in Article 9(2).332 Despite this shortcoming, the new approach signified in ECtHR case-law is particularly significant for Council of Europe countries that do not recognize the right to conscientious objection and do not provide the opportunity to perform alternative civilian service. With the Bayatyan , Erç ep, Bukharatyan, Tsaturyan , Fethi Demirta ş, Savda , and Tarhan judgments, the Court is making clear that in Europe there is a consensus pertaining to the recognition of the right to conscientious objection. The Council of Europe’s Commissioner on Human Rights, Thomas Hammarberg, has said that the states have an obligation to implement the Convention at the domestic level in the best possible way, that payment of compensation is inadequate, and that governments should amend their laws and/or practices based on the situation of applicants.333 Hammarberg in fact makes these comments based on Article 46(1) of the Convention. Hence, states are bound to accept the final judgment in any case to which they are parties. However, as noted above, this does not mean that the state in question has implemented the judgment solely by paying the compensation ordered. What is important here is that the state has the obligation of taking general and/or personal measures that will remove the consequences of the violation and prevent its repetition. For instance, the state in question may make changes in its domestic law in order to prevent such violations from taking place in the future.334 The European Social Charter and the European Committee of Social Rights The Council of Europe adopted the European Social Charter (hereafter “the Charter”)335 in 1961 and revised it in 1996. The Charter guarantees

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social and economic human rights.336 The European Committee of Social Rights (hereafter “the European Committee”) was established in accordance with Article 25 of the Charter, as its monitoring body.337 Neither the right to conscientious objection nor to alternative civilian service is mentioned in the Charter. However, in 2000, a claim by conscientious objectors was brought before the European Committee in the form of a collective complaint. In the case of the Quaker Council for European Affairs v. Greece , 338 the complaint related to Article 1(2) of the Charter (Prohibition of forced labor). Under this paragraph, Contracting Parties undertake “to protect effectively the right of the worker to earn his living in an occupation freely entered upon.” 339 The applicant alleged that, in practice, the application of the act authorizing alternative forms of military service for conscientious objectors failed to respect the prohibition of forced labor. The applicant pointed to the conditions under which alternative civil service is performed in Greece: the duration of which exceeded the duration of normal military service by 18 months and involved long working hours as well as denial of weekly rest periods and holidays.340 The applicant maintained that, carried out under these conditions, alternative civil service amounts to forced labor and was, therefore, contrary to Article 1(2) of the Charter. On June 28, 2000 the European Committee pronounced the complaint admissible.341 On April 25, 2001, the European Committee concluded that there had been a violation of Article 1(2) by the enforcement of a long period of alternative civilian service, which it believed was incompatible with the prohibition on forced labor.342 The European Committee, on April 27, 2001, transmitted its decision on the merits of the complaint to the Committee of Ministers, which adopted Resolution ResChS(2002)3 on March 6, 2002. The Committee of Ministers then urged the Greek authorities to take all necessary measures.343 In addition, after the European Committee gives a decision, it “examines national reports and decides whether or not the situations in the countries concerned are in conformity with the European Social Charter. Its decisions, known as ‘conclusions’, are published every year.”344 For instance, in its conclusions on Greece345 the European Committee found that since the examination of Quaker Council of European Affairs v. Greece, legal regulations governing alternative military service in Greece had been amended.346 Nevertheless, it found that despite Greece’s reduction of the period of alternative civilian service, Greece still could not be considered to conform to Article 1(2) of the

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Charter, which stipulates that the length of alternative civilian service may not be more that 50 percent longer than military service.347 In sum, the European Committee examined the subject of conscientious objection as regards the length and conditions of work of alternative civilian service in other member countries too, evaluating it within the scope of economic and employment rights. It announced that the duration of alternative civilian service in certain states, not only Greece but also Cyprus,348 Estonia,349 Finland,350 and Georgia 351 violated Article 1(2) of the Charter. The European Union Article 10 of the Charter of Fundamental Rights of the European Union Although the early European Community treaties omitted to make explicit reference to human rights, protection of human rights has long been part of the political heritage of EU Member States.352 However, the human rights tradition had not always been visible in the EU’s development until the Treaty of Lisbon entered into force on December 1, 2009.353 In days prior to the Treaty of Lisbon, Member States and EU institutions had no definite remit to enquire into human rights except in cases of discrimination on grounds of sex or nationality.354 In the absence of legal obligations, previous human rights treaties had been taken rather as advice on EU human rights protection.355 Nevertheless, EU policies and legislation have, by degrees, absorbed human rights ideals.356 With the purpose of rendering human rights “more visible to the Union’s citizens” and to indicate their prime importance, in June 1999 the European Council in Cologne decided to produce a Charter.357 This came into being on December 7, 2000 at a European Council meeting at Nice. The Presidents of the European Parliament, the European Council, and the European Commission, on behalf of their institutions, signed and proclaimed the “Charter of Fundamental Rights of European Union” (hereafter “CFREU ”).358 CFREU sets out rights, freedoms, and principles in a single text divided into six chapters: Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights, and Justice. These chapters derive from the fundamental rights and freedoms recognized by the ECHR, EU Member States’ constitutional traditions, the Council of Europe’s Social Charter, the Community Charter of Fundamental Social Rights of Workers, as well as international documents to which its Member States or the EU are parties.359

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Freedom of thought, conscience, and religion is recognized in Article 10 under the chapter “Freedoms.”360 The article comprises two paragraphs of which the first repeats verbatim Article 9(1) of the ECHR. CFREU does not include the limitation clause of Article 9(2). However, this does not mean that there are no limitations on the right. As noted in the text of the explanations relating to the complete text of CFREU: The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 361

Article 52 of CFREU relates to the scope of guaranteed rights. Paragraph 3 of this article states: In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.

What is novel is Article 10(2) regarding the right to conscientious objection: “The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.” CFREU is the first human rights treaty explicitly recognizing the right to conscientious objection. In fact, this recognition ref lects the evolution of the right to conscientious objection in international law. The EU Network of Independent Experts on Fundamental Rights, established by the European Commission, has commented: The right to conscientious objection to military service, which is recognised in Article 10(2) of the EU Charter, has no equivalent in the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR) but it is increasingly accepted in international human rights law. According to the official explanations of the Charter, Article 10(2) ref lects national constitutional traditions and developments in domestic law.362

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As noted in the above comment, developments in international human rights law were taken into consideration by the EU in the drafting of this article. It is also perfectly clear that the attitudes of Member States to the right to conscientious objection, as evinced in their domestic law, formed the basis for the drafting CFREU. This is specified in the preparatory draft chapter thus: “The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue.”363 The phrase “in accordance with the national laws” is found only in the final version of the article in referring to the consideration of developments in national legislation.364 There is no doubt that the right to conscientious objection is protected by Article 10(2). Taking into consideration the statements pertaining to recognition of the right to conscientious objection being a condition of EU membership, it cannot be said that there is any room for failure by candidate countries to recognize the right.365 However, the inclusion of the phrase “in accordance with the national laws” has provoked discussion over whether states have been granted discretion in determining the limitation of this right and its protection. Even if for a moment it is accepted that states have been given discretion as regards the implementation of these freedoms, it is still clear that States Parties may not restrict rights and freedoms enshrined in CFREU, which takes precedence. The fundamental rights and freedoms protected by CFREU should be interpreted with reference to the principle of nondiscrimination specified in Article 21, and with regard to the need to respect the fundamentals of its rights and freedoms as defined in Articles 52 and 53.366 This broad interpretation leads to the following conclusion: any nonrecognition of the right to conscientious objection for the citizens of the EU causes EU states to be in violation of the EU Charter with which they are bound to comply. In conclusion, the right to conscientious objection became explicitly recognized by a legally binding text for the first time in international human rights law in the year 2000. Moreover, consequent to coming into force on December 1, 2009,367 the Treaty of Lisbon introduced the Charter of Fundamental Rights of the EU into European primary law,368 which is legally binding for the institutions and bodies of the EU.369 In order to render a clear picture of the EU’s attitude toward on the subject of conscientious objection, in the next section the Resolutions adopted by the European Parliament will be discussed.

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The European Parliament Resolutions The European Parliament has adopted several resolutions regarding the right to conscientious objection. The first one (the Macciocchi Resolution) was adopted on February 7, 1983.370 It proclaimed that “protection of freedom of conscience implies the right to refuse to carry out armed military service and to withdraw from such service on grounds of conscience.”371 This means that the right to conscientious objection is concomitant with the freedom of conscience. The resolution continues “no court or commission can penetrate the conscience of an individual, and that a declaration setting out of the individual’s motives must therefore suffice in the vast majority of cases to secure the status of conscientious objector.”372 Because “no initiative was taken on these lines either by the governments of the Member States or by the [European] Commission,”373 the European Parliament adopted the Schmidbauer Resolution on October 13, 1989. This resolution protects conscientious objectors more that other previous documents, and is therefore worthy of closer examination.374 Paragraph A of the resolution declares that “no court and no committee can examine a person’s conscience.” Paragraph G/4 states that for a person to claim to be a conscientious objector a declaration of motives should be sufficient.375 Furthermore, this resolution also points out that conscripts should be able to apply for the right to conscientious objection at any time, whether involved in armed or unarmed services, without suffering discrimination on account of this.376 It calls for conscientious objectors to be able to perform alternative service (including unarmed military service and alternative civilian service) in another EU Member State, and for such services to be extended to developing countries.377 It also draws attention to the fact that those performing alternative service should not suffer discrimination,378 calling on the European Commission and Member States to ensure the right to alternative civilian service as enshrined in the ECHR.379 With regard to alternative civilian service, in its Bandré s Molet and Bindi Resolution in 1994,380 the European Parliament “calls on the Member States to ensure that compulsory military service and civilian service performed at institutions which do not come under the supervision of the Defence Ministry are of the same length.”381 Here, the civil and nonpunitive nature of alternative service is emphasized.382 When military and alternative civilian services are of the same length, adherence to the principle of nondiscrimination is assured.383

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Resolution reports are not limited to Member States. It is the practice of the European Parliament to publish the resolution reports for candidate countries during their Accession Process for EU membership. For instance, as a candidate for membership of the EU, Turkey merits particular attention here. In its September 2006 resolution report, the European Parliament reminds Turkey that the right to conscientious objection is recognised in the European Charter of Fundamental Rights; therefore welcomes the initiative by the Ministry of Justice to legalise the right to conscientious objection and to propose the introduction of an alternative [civilian] service in Turkey; is concerned that in a recent judgment of the Turkish military court a conscientious objector to military service was sentenced to imprisonment and that the military court openly declined to follow a relevant ruling of the European Court of Human Rights; condemns the on-going persecutions of journalists and writers who have expressed their support for the right of conscientious objection to military service; 384

The foregoing indicates that the EU takes a clear and positive attitude toward recognition of the right to conscientious objection. The scope of this right has been seen in the Macciocchi, Schmidbauer, and Bandré s Molet/Bindi resolutions. It is evident that EU members are subject to the resolutions as well as to the binding text of the EU such as the Charter of Fundamental Rights of the EU. This conclusion is exactly the same for the candidate members. Countries like Turkey wishing to join the EU need to recognize the right to conscientious objection as a condition of membership by complying with the said EU resolutions and CFREU. The Organization for Security and Co-operation in Europe and the Copenhagen Meeting on the Human Dimension Apart from the Council of Europe and the EU, attention should also be drawn to another European political structure: the Organization for Security and Co-operation in Europe (OSCE). This organization has played a crucial part in advancing human rights in larger Europe, especially after the collapse of Eastern European communism.385 The OSCE was created as a “security organization” in 1975 and was known as the Conference on Security and Co-operation in Europe (CSCE).386 Currently, the OSCE is the World’s largest regional security organization.387 Its remit covers not only military security, disarmament, and border issues but also includes the broader concept of security dealing with human rights and democracy.388

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The OSCE members met in Copenhagen from June 5 to 29, 1990 and, on the last day, signed the Document of the Copenhagen Meeting. In accordance with this Document, participating states noted that anyone’s right to exercise conscientious objection was recognized by the UN Commission on Human Rights.389 Furthermore, with regard to alternative service, participating states also agreed to give consideration, if not having done so already, to the introduction of forms of alternative service of a civilian or noncombatant nature that would be in harmony with conscientious objectors’ motivations, as well being nonpunitive in nature and in the public interest.390 The point to be noted here is the distinction made between unarmed military service and alternative civilian service from which the conclusion may be reached that, to satisfy the demands of the Documents of Copenhagen, it may be sufficient to establish only unarmed military service as an alternative service. Furthermore, participating states pledged to provide the public with information on this issue.391 It should be noted that the OSCE’s documents, unlike many other human rights documents, are politically binding rather than legally binding. The significance of this is that OSCE commitments are unenforceable in a court of law. However, that is not to say they are not binding at all. The distinction is between being commitments that are legal and political rather than between being binding and nonbinding. Therefore, OSCE commitments should be seen as a political promise to adhere to the standards set.392 The consequences of this political promise lie in their significance for countries not recognizing the right to conscientious objection; in signing the Document, states have a political obligation to recognize this right and establish various forms of alternative service (unarmed military service and alternative civilian service). Nevertheless, as outlined above, if one takes into consideration the present-day international standards that require alternative service to be entirely of a civilian nature outside the armed forces then the institution of unarmed military service as the only alternative to armed military service might not be deemed sufficient. For conscientious objectors it could be seen as the Document’s major drawback.393 Concluding Remarks This section has examined the essential human rights document in Europe such as the ECHR and analyzed the attitude of three European intergovernmental bodies regarding the right to conscientious objection.

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The travaux préparatoires of Article 9 of the ECHR indicates that there was no significant substantive discussion as to the scope and meaning of the right to conscientious objection. However, the lack of recognition for the right to conscientious objection in the Convention and Protocols has not prevented other organizations from taking the lead. On the right to conscientious objection, it has been seen that two opposing views existed in Europe until the Grand Chamber’s Bayatyan judgment of July 7, 2011. On the one hand, the Parliamentary Assembly and the Committee of Ministers of the Council of Europe, the European Committee of Social Rights, the European Parliament and the Organization for Security and Co-operation in Europe had clearly adopted a positive attitude toward recognizing and developing the scope of the right to conscientious objection. On the other hand, the European Commission of Human Rights and the European Court of Human Rights did not, initially, support the protection of conscientious objection as a human right under Article 9 of the Convention (freedom of thought, conscience, and religion); they preferred to allow Article 4(3)(b) to override the guarantees of Article 9(1). In due course, the law and current practice among Member States of the Council of Europe evolved to such a point as to cause the Court to review its case-law “in the light of present day conditions.”394 In this respect, it can be seen that candidate countries wishing to join the Council of Europe and the EU, as a condition of membership, must recognize the right to conscientious objection and, in the event of having a system of compulsory military service, have a legal obligation to provide for alternative civilian service.395 In addition, as regards Article 9, it was, belatedly for some, decided that Article 4(3)(b) was not intended to allow restriction of the right to freedom of thought, conscience, and religion, nor any curtailing of the right to manifest one’s religion or belief.396 Eventually, the Grand Chamber, with the case of Bayatyan , overruled its previous case-law stating that “Article 9 should no longer be read in conjunction with Article 4(3)(b).”397 With the Bayatyan judgment some consensus has been achieved in Europe among the relevant entities regarding the right to conscientious objection. In that respect, in spite of the originally negative attitude of the ECtHR between 1966 and 2011, the European mechanisms have contributed to building solid foundations for the right to conscientious objection as a legitimate exercise of freedom of thought, conscience, and religion and have also developed the scope of this right in the light of present-day conditions. The Court’s newly adopted stance of acceptance

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is important in bringing it into line with the other significant institutions in Europe, including the EU and the OSCE. This means that the right to conscientious objection is now recognized throughout the European region, such standardization ensuring that opinions relating to the right to conscientious objection in the UN and European mechanisms are more uniform. The Inter-American Human Rights System Having outlined the situation in Europe, it will be useful to survey the current standards pertaining to the right to conscientious objection in international law under other regional mechanisms. The Inter-American regional mechanisms, having also explicitly dealt with conscientious objection, provide the most fertile arena for further research outside Europe. But it was not until Cristi á n Daniel Sahli Vera et. al. v Chile case of 2005 that the long silence of the Inter-American mechanism on the issue of conscientious objection was eventually broken. The American Convention on Human Rights Travaux Pr é paratoires of Article 12 of the American Convention on Human Rights The most important legal instrument for the vindication of rights throughout the Inter-American system is the American Convention on Human Rights (hereafter “AmrCHR” or “the Convention”).398 This binding convention was adopted on November 22, 1969,399 not coming into force until 1978.400 With the Convention in operation, a marked improvement in the effectiveness of the Inter-American Commission on Human Rights and the Inter-American mechanisms for the promotion and protection of human rights has been observed. Moreover, the adoption of the Convention can be regarded as a high achievement after extended efforts to ensure the strong legal base on which the system is built.401 Freedom of thought, conscience, and religion was dicussed under Article 12 of the Convention. Article 12 is not identical to either Article 18 of the ICCPR nor Article 9 of the ECHR. The first draft of the Convention was based on the ECHR and the UN Commission on Human Rights draft of the ICCPR.402 However, there was one important difference: a change in the first paragraph of Article 12 of the word “manifestation” to “profess” in the

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phrase “profess a religion or belief.” Later, the word “disseminate” was added into the text at the suggestion of Dr. C.A. Dunshee de Abranches, Rapporteur for the Commission of the Organization of American States (OAS).403 According to Hammer, “[t]hese changes do suggest a more religious overtone to the document. ‘Profess’ and ‘disseminate’ imply specific rights for proselytising religions, licence that was not provided for in the ICCPR.”404 There is no discussion of conscientious objection in the travaux pré paratoires of Article 12 of the AmrCHR (freedom of conscience and religion). Such had been the case during the drafting of the UDHR, the ICCPR, and the ECHR. The only mention of “conscientious objectors” is to be found in Article 6(3)(b) of the Convention, which will be explored in a later section. Final Text: The Meaning of Article 12 of the AmrCHR According to the first paragraph of the Convention’s preamble, the purpose of the Convention is “to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.”405 Part I of the Convention establishes the obligations of the State to respect the rights and freedoms recognized in the Convention.406 In the Convention, rights and freedoms are divided into “Civil and Political Rights” under Chapter II, and “Economic, Social, and Cultural Rights” under Chapter III. In Chapter II, Article 12(1) recognizes the right to freedom of conscience and religion as a civil and political right. This right includes the “freedom to maintain or change one’s religion or beliefs,” as well as the “freedom to profess or disseminate one’s religion or beliefs either individually or together with others, in public or in private.” However, the AmrCHR differs from the UDHR, the ICCPR, and the ECHR in that it recognizes freedom of thought separately under the article dealing with free expression, Article 13.407 Article 12(2) provides that, in general, no one shall be “subject to restrictions that might impair his freedom to maintain or change his religion or beliefs” with a proviso in Article 12(3) that states that the freedom to manifest religion and beliefs may be subject to limitations “prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights and freedoms of others.” Article 12(4) also pronounces that “Parents or guardians, as the case may be, have the right to provide for the religious and moral education of their children or wards that is in accord with their own convictions.”

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Travaux Pr é paratoires of Article 6(3)(b) of the AmrCHR Article 6(3)(b) asserts that “military service and, in countries in which conscientious objectors are recognized, national service that the law may provide for in lieu of military service” do not constitute forced or compulsory labor.408 Although the term “conscientious objectors” was employed during the drafting of Article 6, there was no debate regarding the issue of conscientious objection itself. Only one occasion arose during the Inter-American Specialized Conference on Human Rights in which the International Labour Organization remarked on the translation of the term “any military service” appearing in the various versions of the draft prepared for the Conference, stating The Spanish text refers to “el servicio de car á cter militar,” and the English text, to “any military service.” The corresponding exception, provided for in Article 2(2) of the Convention no. 29 [concerning Forced or Compulsory Labour] refers to any work or service extracted in virtue of compulsory military service laws for work of purely military character, but the English text might be interpreted as applying to all service required by virtue of compulsory military service laws, including service utilized for purposes that are not of a military nature.409

The Inter-American Commission on Human Rights and the InterAmerican Court of Human Rights—An Interpretation of the Right to Conscientious Objection to Military Service The Inter-American Commission on Human Rights (hereafter “the Inter-American Commission” or “the Commission”) was created by a simple resolution made at the Meeting of the Consultation of Foreign Ministers in 1959. It thus began life as an “autonomous entity” of the Inter-American system.410 After the Convention entered into force in 1978, the Commission was given an additional role by the Charter of the OAS.411 In addition to the Commission, Chapter VII of Part II of the Convention created the Inter-American Court of Human Rights (hereafter “the Inter-American Court”), which has adjudicatory and advisory jurisdiction.412 Overall, the Court and the Commission are charged with ensuring that States Parties to the Convention fulfill their obligations under the Convention. For instance, both the Court and the Commission have

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received a number of cases relating to the right to freedom of conscience and religion (Article 12). The Commission has commented that: Article 12 of the American Convention protects the right to freedom of conscience and religion, which includes the right of every person to uphold their religion or beliefs and the freedom to practice and preach them both public[ly] and privately. To that end, no one can be subjected to restrictive measures that affect such liberty, “subject only to the limitations prescribed by law that are necessary to protect public safety, order, health, or morals, or the rights or freedoms of others” [Article 12(3)].413

In the case of The Last Temptation of Christ (Olmedo-Bustos et. al.) v. Chile, the Court stated that According to Article 12 of the Convention, the right to freedom of conscience and religion allows everyone to maintain, change, profess and disseminate his religion or beliefs. This right is one of the foundations of democratic society. In its religious dimension, it constitutes a farreaching element in the protection of the convictions of those who profess a religion and in their way of life.414

It can be readily understood from these judgments that the Court and the Commission perceive freedom of conscience—the basis of the right to conscientious objection—as one of the cornerstones of a democratic society. In the light of these judgments, it could be claimed that the manifestation of freedom of conscience by conscientious objectors in the public sphere has been safeguarded by the Convention. In this respect, the question arises whether this claim matches the real attitude of the Inter-American mechanisms with regard to the right to conscientious objection. The Recommendation of the Inter-American Commission on Human Rights Except in the context of individual petitions, the issue of conscientious objection has been referred to by the Commission on only one occasion.415 Under Article 41(b) of the AmrCHR, one of the Commission’s functions is to make recommendations to Member States, when it considers such action advisable, for the adoption of progressive measures into their domestic law and constitutional provisions as well as for taking appropriate measures to further the observance of rights.

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In its 1997 Annual report, the Commission announced that [t]he Commission is aware that a number of Member States, rather than applying current legal provisions for the recruitment of inductees, resort to the arbitrary detention of candidates. In other cases, the individuals recruited are not permitted recourse to the courts to demonstrate that the law exempts them from service. The Commission also has knowledge that certain ethnic, religious, and racial minorities are subjected to discriminatory practices upon recruitment. The Commission urges the Member States to put an end to those practices.416

In making this proposal the Commission noted the suggestions of other international mechanisms on this subject,417 emphasizing that states should make the necessary legal provision for exemption from military service in order to effectively implement the right to freedom of conscience and religion.418 This consideration led the Commission to recommend that Member States whose legislation already provides for compulsory military service take measures to ensure the protection of the individual rights of inductees: States whose legal order provides for compulsory military service should revise their legal provisions on recruitment with a view to respecting and protecting the right of inductees to humane treatment, due process, freedom of conscience and religion, and equality before the law. The Commission also invites the member States whose legislation still does not exempt conscientious objectors from military service or alternative service , to review their legal regimes and make modifications consistent with the spirit of the international law of human rights .419 (emphasis added)

Importantly, this statement suggests that the Commission closely monitor developments in international law regarding conscientious objection. The Commission recognizes the right to conscientious objection and alternative civilian service, and analyzes this right in the light of the principle of nondiscrimination. Moreover, the italicized segment of the statement has led Brems to state that “the Inter-American Commission clearly interprets the international law of human rights in such a way that it imposes a duty to provide exemption from military service for conscientious objections and, it seems, even exemptions from alternative service [including alternative civilian service and unarmed military service]”420 (emphasis added).

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The Case-law of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights A judicial consideration of conscientious objection by the Inter-American Commission was in Cristi á n Daniel Sahli Vera et. al. v. Chile.421 Here, the petitioners averred that in Chile male citizens are obliged to comply with compulsory military service law. In December 1998, before the conscription lists were drawn up, the petitioners made individual requests to the notification office of the Recruitment Department of the General Bureau on Mobilization of the Chilean State, indicating their conscientious objection to military service but later claimed that they had never received a response to the requests.422 Instead, they received call-up papers summoning them to present themselves on March 18 and 19, 1998.423 The petitioners affirmed that they had filed a writ to protect their rights (recurso de protecci όn) before the Court of Appeal in Santiago, in order to safeguard their right to freedom of conscience, as framed in Article 19(6) of the Chilean Constitution. On March 22, 1999 the Chilean Court of Appeal found the recurso de protecci όn inadmissible.424 After exhausting domestic remedies, they brought their case to the Inter-American Commission. The petitioners alleged that the State had violated their right to conscientious objection, with a direct detrimental impact on their freedom of conscience and religion (Article 12), their right to privacy (Article 11), the obligation to respect and ensure the rights established in the Convention (Articles 1(1)), and the obligation to bring domestic legislation in line with those rights (Article 2).425 In its decision the Commission first focused on international jurisprudence. The Commission’s interpretation was that while, on the one hand, international human rights jurisprudence recognized the status of conscientious objectors in countries where that status is recognized in domestic law, on the other hand, international human rights mechanisms do not find there is a violation of the right to freedom of thought, conscience, and religion in countries where this status is not recognized.426 In this regard, the Commission explored the interpretation of the European system on the issue of conscientious objection. It declared that at the time of the judgment, the European system did not recognize the right to conscientious objection within the framework of the right to freedom of thought, conscience, and religion (Article 9) on account of the clear reference to conscientious objectors in Article 4(3)(b) of the Convention, which exempts military or alternative civilian service from the definition of forced or compulsory labor.427

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Conversely, the Commission referred to General Comment no. 22(48) of the HRC, which explicitly recognizes the existence of the right to conscientious objection, as derived from Article 18 (freedom of conscience) of the ICCPR. However, according to the Commission, the Comment recognizes the right to conscientious objection only in states that have legal provision for conscientious objector status.428 The Commission added that The UN Human Rights Committee tends not to review the State authorities’ evaluation of the grounds for the granting or denial of such status despite its general admonition that “When this right is recognised by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs [as per General Comment no. 22(48), para. 11].” The Committee appears to review whether there exists a belief system grounded in a coherent or “philosophical” framework, and is unwilling to accept mere self-definition as a conscientious objector. Once a belief system is identified, the [Human Rights] Committee will not prefer one system to another or discriminate among them.429

Following a summary of the international interpretation of this issue, the Inter-American Commission went on to ask whether Article 12 of the American Convention could be interpreted as permitting conscientious objectors exemption from conscription when the Member States themselves do not recognize the right to conscientious objection.430 In its response, the Commission declared that the term “conscientious objectors” is mentioned only once in Article 6(3)(b) of the American Convention, which expressly acknowledges that military and national service do not constitute forced or compulsory labor.431 Article 12 of the American Convention, in tandem with Article 6(3)(b), explicitly recognize the right to conscientious objection status in countries that have provision for this right in their domestic law.432 Hence, it seems that the Commission reached a straightforward conclusion regarding only the countries in which conscientious objectors are recognized as such. However, the Commission asked another question relative to those countries where conscientious objector status is not recognized by law; namely, are they required to change their law to recognize conscientious objector status?433 The Commission responded to this question as follows: The brief survey of the jurisprudence on this issue of the European system and the UN Human Rights Committee reveals that international

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human rights bodies are unwilling to create the right to conscientious objector status under the rubric of the right to freedom of conscience in those countries in which the status is not recognised by domestic law. These same bodies, however, do recognise the right, under the right to freedom of conscience, in countries that provide for conscientious objector status in their law, but there controversies arise as to whether it is sufficient for the conscientious objector to self-define him or herself as such, or whether the [Human Rights] Committee will defer to the State’s applying a domestically administered test that requires a showing of adherence to a pacifist or religiously-oriented belief system to support the finding of such status.434 (emphasis added)

In summary, the Commission points out those international human rights mechanisms that leave the choice of recognizing the right to conscientious objection to the discretion of states, and concludes that nonrecognition of this right in domestic law does not constitute a violation of the right to freedom of thought, conscience, and religion.435 The Commission states that it reached such a conclusion by reading Article 12 in conjunction with Article 6(3)(b),436 and expressed its view thus: The Commission is of the view that the failure of the Chilean State to recognise “conscientious objector” status in its domestic law, and the failure to recognise Cristian Daniel Sahli Vera, Claudio Salvador Fabrizzio Basso Miranda and Javier Andres Garate Neidhardt as “conscientious objectors” to compulsory military service, does not constitute an interference with their right to freedom of conscience. The Commission is of the view that the American Convention does not prohibit obligatory military service and that Article 6(3)(b) of the Convention specifically contemplates military service in countries in which conscientious objectors are not recognised. Consequently, the Commission finds no violation by the Chilean State of Article 12 of the American Convention to the detriment of the petitioners in this case.437

Despite the Commission’s decision, it could be argued that strict interpretation of the language of Article 6(3)(b) should be avoided, the first reason being that Article 6(3)(b) of the AmrCHR does not mean that Article 12 is inapplicable. The contents of Article 6(3)(b) are relevant only to the article itself and do not limit the scope of other articles in the AmrCHR.438 Secondly, while the Inter-American mechanisms reinterpret the Convention, they should take the American consensus regarding the right to conscientious objection as well as developments in international law

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as a basis for interpretation. Since the drafting of these Conventions, the legal landscape of America has changed. Conventions, as living instruments, must be interpreted in the light of present-day conditions.439 It is therefore contended that it is now time that Inter-American judicial mechanisms review previous case-laws that allowed Article 6(3)(b) to override the guarantees of Article 12. Curiously, the Inter-American Commission’s decision on the Chilean case seems inconsistent with an earlier statement, dated 1997, in which it recognized the right to conscientious objection and alternative civilian service in the spirit of international human rights law. In this report, the Commission referred to the 1995 resolution of the UN Commission on Human Rights, emphasizing the need for recognition of the right to conscientious objection.440 This type of inconsistency is very similar to that of the differing interpretations on this right offered by Council of Europe bodies previous to the Grand Chamber’s judgment in Bayatyan . At that time, the Parliamentary Assembly and the Committee of Ministers, both statutory organs of the Council of Europe, called on all Member States to recognize the right to conscientious objection yet, paradoxically, the case-law of the European Commission of Human Rights and the European Court of Human Rights allowed Article 4(3)(b) to override the guarantees of Article 9(1).441 In 2005 the Inter-American Commission had a further opportunity to consider the right to conscientious objection in the case of Alfredo Dí az Bustos v. the Republic of Bolivia.442 Mr. Bustos claimed that, as a Jehovah’s Witness, he had been discriminated against in that his right to conscientious objection had been violated by the State. This violation directly affected his freedom of conscience and religion. He asserted that the violation was owing to discrimination by the Bolivian National Defence Service in its preferential treatment of Roman Catholics compared to adherents of other faiths: the former qualified for exemption from military service while the latter did not.443 He alleged that the Bolivian State had felt empowered to take the measures violating his right to freedom of conscience and religion by virtue of the “Bolivian Constitutional Court’s ruling”444 in which conscientious objection is not considered to be a claimable right for the simple reason that nothing in the domestic law allows it.445 Fortunately, following the Chilean judgment, the Commission’s views regarding conscientious objection had become more favorable. On October 27, 2005, the State of Bolivia and the petitioner Alfredo

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Dí az Bustos negotiated a friendly settlement.446 Significantly, the Commission found the friendly settlement to be in full accordance with international human rights law, which had evolved to protect the status of conscientious objectors in countries already possessing legal provisions for this status.447 The Commission cited paragraph 11 of the General Comment no. 22(48) of the HRC as support, emphasizing its importance as a point of reference in the matter of conscientious objection.448 This would seem to imply that the Commission has aligned itself with the tenets of the HRC.449 Following the friendly settlement in Bustos, a case was brought before the Commission against Ecuador by Xavier Alejandro Le ón Vega, an active member of the Ecuadorian conscientious objectors’ movement. The petitioner asserted that he had not received an official exemption card indicating his status as a conscientious objector, and claimed that this had directly affected all aspects of his life, including his right to work and engage in free enterprise, his freedom to leave and enter Ecuador, and the continuation of his education, in addition to the violation of his freedom of conscience.450 His case was accepted by the Commission, which confirmed in its admissibility in a decision transmitted on March 2, 2006: The Commission considers that the right to refuse to comply with military service or conscientious objection is a right that could derive from Articles 11 and 12, read together with Article 6.3.b of the American Convention where conscientious objectors are expressly recognised in the legislation of the state under consideration.451 The 1997 Constitution of Ecuador recognises this right in Article 188. The question that has been lodged with the Commission and which must be resolved at the merits stage is whether the procedure used in Ecuador to regulate the condition of conscientious objector, and the different forms of substitute service permitted, are compatible with the provisions of the conventions quoted above.452

The Commission added that Therefore, the Commission considers that the allegations by the petitioner regarding alleged violations of the right to freedom of conscience and religion to freedom of movement and residence, to education, and the inconsistency of domestic legislation with international commitments assumed by the State, could constitute violations to the

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petitioner’s rights as enshrined in Articles 1.1, 2, 11, 12.1, and 22.2 of the Convention and to Article 13.1 of the Protocol of San Salvador.453

The Commission thus decided to begin with an analysis of the merits of the case, but at the time of writing (October 2013) there has been no decision. Here is an opportunity for the Commission to revise its previous decision (Cristi á n Daniel Sahli Vera et. al. v. Chile) in the light of current development in international human rights law. The Ecuadorean case is very different to the Chilean case in that the Ecuadorian Constitution recognizes the right to conscientious objection, but fails to implement this right because of the impeding effect of the Law of Obligatory Military Service and its regulations.454 Despite this difference between the two countries, if the Ecuadorean case is decided by the Commission in favor of the petitioner, it will have important implications for most Member States. In that respect, it can be seen that of the 35 OAS members, 27 maintain armed forces that are either professional or based on compulsory military service.455 Of those members, six members recognize the right to conscientious objection to military service.456 Considering this heterogeneous situation, in the event of the Court handing down a judgment in the Le ón case recognizing the right to conscientious objection, those countries that do not at present recognize the right will have to do so in accordance with Article 2 of the Convention, which says that States Parties have an obligation to make all necessary legal reforms in domestic law in order that rights and freedoms embodied in the Convention may be effective.457 A further outcome may be that, in recognizing the right to conscientious objection, the decisions of the Inter-American mechanisms will be forced to align themselves with the attitudes of international mechanisms, such as the HRC, that do recognize the right. Concluding Remarks Although the Commission interprets the American Convention ostensibly in such a way as to support the general right to conscientious objection, by confining its approval to countries in which conscientious objection is already recognized in domestic law, it would appear to be evading the issue somewhat.458 The international rule as laid down in Article 31(1) of the Vienna Convention that the American Convention’s object and purpose should

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be interpreted according to present conditions must not be forgotten. Otherwise, in the light of growing international acceptance of conscientious objection, it will become increasingly difficult to justify the Commission’s limits on the application of Article 12. Instead of discriminating against petitioners who happen to be citizens of states where conscientious objection is not provided for in domestic law, the Commission should be seen to be even-handed, applying Article 12 to every petitioner in equal measure. Finally, it is abundantly clear that with the Bayatyan judgment, the case-law of the European Court of Human Rights referred to by the Commission in its Christian Daniel Sali Vera et. al. v. Chile ruling, has undergone a sea change. In that respect, since the ECHR and the AmrCHR are fundamentally similar, it is absolutely indispensable that the Inter-American mechanisms review their decisions regarding the right to conscientious objection and bring them into line with current international standards.

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onscientious objection first entered the agenda of international human rights law following the Second World War. Today, the right to conscientious objection is recognized in Article 10(2) of the Charter of Fundamental Rights of the European Union and Article 12(1) of the Ibero-American Convention on Young People’s Rights.1 Apart from these two documents, no human rights convention makes direct recognition of the right to conscientious objection. However, the right is addressed within the scope of the “freedom of thought, conscience, and religion” clauses, and has therefore been guaranteed as a universal human right under key human rights documents. 2 The right to freedom of thought, conscience, and religion is now recognized as one of the foundations of a democratic society and of international human rights law.3 In analyzing the travaux pr éparatoires on the right to freedom of thought, conscience, and religion in international (the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR)) and regional (the European Convention on Human Rights (ECHR) and the American Convention on Human Rights (AmrCHR)) human rights texts, the fact emerges that during the drafting processes, the drafters intentionally incorporated beliefs other than religious beliefs. Additionally, they clearly distinguished between the meaning of conscience and thought or opinion.4 The significance of this as regards conscientious objection is that the right to conscientious objection is not limited to solely religiously based objection but extends to nonreligious reasons.5 Furthermore, it should be emphasized that these human rights texts such as the UDHR, the ICCPR, the ECHR, and the AmrCHR make a net distinction between rights in the personal sphere and rights in the public sphere. The forum internum has been announced an inviolable sphere whereas states are allowed to interfere in the forum

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externum (exercising conscience or manifestation of religion or belief )6 in particular circumstances and as long as states are able to justify the interference.7 The right to conscientious objection is closely linked to the forum internum and forum externum aspects of freedom of thought, conscience, and religion. 8 In its latest opinions regarding the right to conscientious objection expressed in 2011 and 2012,9 the Human Rights Committee (HRC) addressed the right to conscientious objection as regards the forum internum aspect. Here, it found that for the state to constrain a person to act contrary to his/her conscience constituted a violation of Paragraph 1 of Article 18 of the ICCPR. With the recognition of the forum internum aspect of this freedom by the HRC it has been firmly established that states may under absolutely no circumstances intervene in the inner being of conscientious objectors. As a consequence of this conclusion the right to conscientious objection within freedom of thought, conscience, and religion is defined as an absolute and nonderogable right. While the European Court of Human Rights (ECtHR) has recognized the right to conscientious objection, unlike the HRC, it has done so by dealing with the forum externum aspect of the freedom of thought, conscience, and religion. This means, according to the ECtHR, that the right to conscientious objection regards only the manifestation of freedom of thought, conscience, and religion. Thus, the ECtHR maintains that there may be interference with this right but, in the event of such interference being necessary in a democratic society, the aims must be legitimate.10 This stance lags behind the HRC because the right to conscientious objection is described by the HRC as an integral part of freedom of thought, conscience, and religion. In this respect, it is clear that the ECtHR needs to develop its case-law relating to the right to conscientious objection in future cases. In addition to the HRC Committe and ECtHR the right to conscientious objection is qualified as a legitimate exercise of freedom of thought, conscience, and religion by the Commission on Human Rights, the Council of Europe’s Parliamentary Assembly and Committee of Ministers, as well as the European Union Parliament. In addition, the Organisation for Security and Cooperation in Europe has encouraged its members to make a political commitment to recognizing the right to conscientious objection in the Document of the Copenhagen Meeting. A different approach, however, has been adopted by the InterAmerican Commission on Human Rights (hereafter “the Inter-American Commission”) that, due to the obstructing inf luence of Article 6(3)

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(b) of the AmrCHR, still does not recognize the right to conscientious objection. The Inter-American Commission argues that the AmrCHR, rather than, give conscientious objectors the right to exemption from military service, leaves it to each Contracting State to decide whether or not to grant such a right. Until very recently, when the ECtHR reviewed its case-law, the same conditions obtained in Europe, so that it may be optimistic to expect a change of heart for the Inter-American Commission in the near future. Despite the Inter-American Commission’s negative approach on this issue so far, the right to conscientious objection has clearly undergone rapid evolution on the international human rights agenda since the Second World War. Currently, the United Nations and European mechanisms call on states to incorporate this right into domestic law and, in doing so, ask for the following key principles to be recognized and adhered to: • Conscientious objection is based on principles of conscience, including strongly held beliefs, originating from motives of a religious, moral, ethical, philosophical, humanitarian, or similar nature.11 • The right to conscientious objection should be recognized in times of both war and peace.12 The right to refuse to carry out military service should be granted to all soldiers at any time.13 The right should be recognized for conscripted soldiers as well as professional soldiers.14 • Information regarding the right to conscientious objection should be easily accessible by all persons.15 • Applications to be a conscientious objector should be accepted without inquiry as to motivation.16 • Conscientious objectors should not be imprisoned for refusing to perform military service. States should take the steps necessary to ensure that conscientious objectors are not committed to prison. Conscientious objectors must not be repeatedly imprisoned for refusing to perform military service.17 • All legal obstacles and practical obstructions preventing the freedom of expression of conscientious objectors and their supporters should be removed.18 • The decision-making body that deals with conscientious objection applications should be independent, impartial, and nondiscriminatory.19 In addition, conscientious objectors should have the right to appeal against the decision of the decision-making body. 20

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This means that the appeal authority should be independent from the decision-making body. Administration of these bodies should come under the civilian umbrella. 21 • Various forms of alternative service must take into consideration the motives of each conscientious objector who must be allowed to do an alternative civilian service consonant with his/her individual conviction. Such forms might include service of a civilian or unarmed character. In that sense, present international law standards suggest that alternative service should be of a purely civilian nature. 22 Such service must be supervised by civil administration. Furthermore, alternative service should be in the public interest and not in any way be of a punitive or deterrent nature. 23 In the event of the duration of alternative service (including alternative civilian service and unarmed military service) being longer than that of military service, the distinction must be based on reasonable and objective criteria. 24 • Conscientious objectors should not suffer discrimination as regards their conditions of service, 25 nor their social, cultural, political, or economic rights. 26 • Conscientious objectors who leave their homeland on account of fear of persecution as a result of their refusal to perform military service should be granted asylum. 27

List of Cases

International Human Rights Committee Aapo Jä rvinen v. Finland , Communication no. 295/1988, August 15. 1990, UN Doc. CCPR/C/39/D/295/1988. Cenk Atasoy and Arda Sarkut v. Turkey, Communication nos. 1853/2008 and 1854/2008, March 29, 2012, UN Doc. CCPR /C/104/D/1853–1854/2008. Eu-min Jung, Tae-Yang Oh, Chang-Geun Yeom, Dong-hyuk Nah, Ho-Gun Yu, Chi-yun Lim, Choi Jin, Taehoon Lim, Sung-hwan Lim, Jaesung Lim, and Dong-ju Goh v. the Republic of Korea, Communications nos. 1593 to 1603/2007, March 23, 2010, UN Doc. CCPR /C/98/D/1593–1603/2007. Fr é d é ric Foin v. France, Communication no. 666/1995, November 9, 1999, UN Doc. CCPR/C/D/666/1995. Godefriedus Maria Brinkhof v. the Netherlands, Communication no. 402/1990, July 30, 1993, UN Doc. CCPR/C/48/D/402/1990. L. T. K. v. Finland , Communication no. 185/1984, July 9, 1985, UN Doc. CCPR/C/OP/2. Marc Veiner and Paul Nicolas v. France, Communication nos. 690/1996 and 691/1996, August 1, 2000, UN Doc. CCPR/C/69/D/690/1996 and 691/1996. Min-Kuy Jeong et. al. v. the Republic of Korea , Communication nos. 1642 to 1741/2007, April 27, 2011, UN Doc. CCPR/C /101/D/1642–1741/2007. Paavo Muhonen v. Finland , Communication no. 89/1981, April 8, 1985, UN Doc. CCPR/C/OP/2. Paul Westerman v. the Netherlands, Communication no. 682/1996, December 13, 1999, UN Doc. CCPR/C/67/D/682/1996.

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Richard Maille v. France, Communication no. 689/1996, July 31, 2000, CCPR/C/69/D/689/1996. Yeo-Bum Yoon and Mr Myung-Jin Choi v. the Republic of Korea , Communication nos. 1321/2004 and 1322/2004, November 3, 2006, UN Doc. CCPR/C/88/D/1321–1322/2004. International Court of Justice Legality of the Threat or Use of Nuclear Weapons, (Advisory Opinion), [1996] ICJ Rep. 226, July 8, 1996. Regional African Court on Human and People’s Right Soufiane Ababou v. People’s Democratic Republic of Algeria , June 16, 2011, Application no. 002/2011. European Commission of Human Rights A. v. Switzerland , Application no. 10640/83, 38 Eur. Comm’n H.R. Dec. and Rep. 219 (1984). Angelini v. Sweden , Application no. 10491/83, 51 Eur. Comm’n H.R. Dec. and Rep. 41 (1986). Arrowsmith v. the United Kingdom , Application no. 7050/75, 19 Eur. Comm’n H.R. Dec. and Rep. 5 (1978). Autio v. Finland , Application no. 17086/90, 72 Eur. Comm’n H.R. Dec. and Rep. 245 (1990). Chappell v. the United Kingdom , Application no. 12587/86, Eur. Comm’n H.R. Dec. and Rep. 53 (1987). Conscientious Objectors v. Denmark, Application no. 7565/76, 9 Eur. Comm’n H.R. Dec. and Rep. 117 (1977). Grandrath v. the Federal Republic of Germany, Application no. 2299/64, 10 Y.B. Eur. Conv. on H.R. 626 (1966). Goodwin v. the United Kingdom, Application no. 28957/9535, Eur. Comm’n H.R. Dec. & Rep. 18 (2002). ISKCON and others v. the United Kingdom , Application no. 20490/92, 76-A Eur. Comm’n H.R. Dec and Rep. 41 (1994). Johansen v. Norway, Application no. 10600/83, 44 Eur. Comm’n H.R. Dec. and Rep. 155 (1985).

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Julin v. Finland , Application no. 17087/90, Eur. Comm’n H.R. Dec. and Rep. (1991). Karnell and Hardt v. Sweden , Application no. 4733/71, 14 Y.B. Convention on HR (Cmn) 676 (1971). Knudsen v. Norway, Application no. 11045/84, 42 Eur. Comm’n H.R. Dec. and Rep. 247 (1985). Le Cour Grandmaison and Fritz v. France, Application nos. 11567/85 and 11568/85, 53 Eur. Comm’n H.R. Dec. and Rep. 150 (1987). N v. Sweden , Application no. 10410/83, 40 Eur. Comm’n H.R. Dec. and Rep. 203 (1984). Omkarananda and the Divine Light Zentrum v. the United Kingdom , Application no. 8188/77, 25 Eur. Comm’n H.R. Dec. and Rep. 105 (1981). Raninen v. Finland , Application no. 20972/92, 84-A Eur. Comm’n H.R. Dec. and Rep. 17 (1996). Reformed Church of X v. the Netherlands, Application no. 1497/62, 5 Yearbook 286 (1962). Thlimmenos v. Greece, Application no. 34369/97, the Report of the Commission, December 4, 1998. Tsirlis and Koulompas v. Greece, Application nos. 19233/91 and 19234/91, the Report of the Commission, March 7, 1996. X v. Austria , Application no. 1718/62, 8 Y.B. Eur. Conv. on H. R. 168 (1965). X v. Austria , Application no. 4982/71, 15 Y.B. Eur. Conv. on H. R. 468 (1972). X v. Austria , Application no. 5591/72, 43 Collections 161 (1973). X v. Austria , Application no. 8652/79, 26 Eur. Comm’n H.R. Dec. and Rep. 89 (1981). X and Church of Scientology v. Sweden , Application no. 7805/77, 16 Eur. Comm’n H.R. Dec. and Rep. 68 (1979). X v. the Federal Republic of Germany, Application no. 7705/76, 9 Eur. Comm’n H.R. Dec. and Rep. 196 (1977). X v. the Federal Republic of Germany, Application no. 12230/86, 11 Eur. Comm’n H.R. Dec. and Rep. 101 (1987). X v. Italy, Application no. 6741/74, 5 Eur. Comm’n H.R. Dec. and Rep. 83 (1976). X v. the Netherlands, Application no. 1068/61, 5 Yearbook 278 (1962).

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X and Y v. the Netherlands, Application no. 7653/74, Eur. Comm’n H.R. Dec. and Rep. 2 (1974). X v. the United Kingdom , Application no. 6886/75, 5 Eur. Comm’n H.R. Dec. and Rep. 100 (1976). X v. the United Kingdom , Application no. 7291/75, 11 Eur. Comm’n H.R. Dec. and Rep. 55 (1977). European Court of Human Rights Ahmet Sad ı k v. Greece, Application no. 18877/91, November 15, 1996. Al-Saadoon and Mufdhi v. the United Kingdom, Application no. 61498/08, March 2, 2010. Artico v. Italy, Application no. 6694/74, May 13, 1980. Barfod v. Denmark, Application no. 11508/85, February 22, 1989. Bayatyan v. Armenia , Application no. 23459/03, 27 October 2009 (C); July 7, 2011 (GC). Bukharatyan v. Armenia , Application no. 37819/03, January 10, 2012. Campbell and Cosans v. the United Kingdom, Application nos. 7511/76; 7743/76, February 25, 1982. Cha’are Shalom and Tsedek v. France, Application no. 27417/95, June 27, 2000. Childs v. the United Kingdom , Application no. 9813/82, March 1, 1983. Ç a ğlar Buldu and others v. Turkey, Application no. 14017/08 (the final judgment has not been given by the ECtHR at the time of writing – April 2013). Darby v. Sweden , Application no. 11581/85, October 11, 1988. Demir and Baykara v. Turkey, Application no. 34503/97, November 12, 2008 (GC). Er ç ep v. Turkey, Application no. 43965/04, November 22, 2011. Faizov v. Russia , Application no. 19820/04, January 15, 2009. Fethi Demirta ş v. Turkey, Application no. 5260/07, January 17, 2012. Groppera Radio AG and Others v. Switzerland , Application no. 10890/84, March 28, 1990. W v. the United Kingdom , Application no. 18187/91, February 10, 1993. Halford v. the United Kingdom, Application no. 20605/92, June 25, 1997.

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Handyside v. the United Kingdom , Application no. 5493/72, December 7, 1976. Hazar and others v. Turkey, Application nos. 62566/00–62577/00 and 62579–62581/00, January 10, 2002. Hoffmann v. Austria , Application no. 12875/87, June 23, 1993. Ireland v. the United Kingdom , Application no. 5310/71, January 18, 1978. Kala ç v. Turkey, Application no. 20704/92, July 1, 1997. Kimlya and others v. Russia, Application nos. 76836/01, 32782/03, October 1, 2009. Kjeldsen, Busk Madsen and Petersen v. Denmark, Application nos. 5095/71, 5920/72, 5926/72, December 7, 1976. Klass and others v. the Federal Republic of Germany, Application no. 5029/71, September 6, 1978. Kokkinakis v. Greece, Application no. 14307/88, May 25, 1993. Kustannus AB v. Finland, Application no. 20471/92, April 15, 1996. Larissis and others v. Greece, Application nos. 140/1996/759/958–960, February 24, 1998. Lautsi v. Italy, Application no. 30814/06, November 3, 2009. Lawless v. Ireland , Application no. 332/57, July 1, 1961. Leyla Ş ahin v. Turkey , Application no. 44774/98, November 10, 2005 (GC). Loizidou v. Turkey, Application no. 15318/89, March 23, 1995 (GC). Malone v. the United Kingdom , Application no. 8691/79, August 2, 1984. Manoussakis and others v. Greece, Application no. 18748/91, August 29, 1996. Markt Intern Verlag GmbH and Klaus Beermann v. Germany, Application no. 10572/83, November 20, 1989. McCann and others v. the United Kingdom, Application no. 18984/91, September 27, 1995 (GC). Mente ş v Turkey, Application no. 23186/94, July 24, 1998. Metropolitan Church of Bessarabia and Others v. Moldova , Application no. 45701/99, December 13, 2001. Mü ller and others v. Switzerland , Application no. 10737/84, May 24, 1988.

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Otto Preminger Institut v. Austria , Application no. 13470/87, September 20, 1994. Öcalan v. Turkey, Application no. 46221/99, March 12, 2003 (C); May 12, 2005 (GC). Penditis v. Greece, Application no. 23238/94, June 9, 1997 (friendly settlement). Pretty v. the United Kingdom , Application no. 2346/02, April 29, 2002. Saadi v. the United Kingdom , Application no. 13229/03, January 29, 2008 (GC). Salonen v. Finland , Application no. 27868/95, July 2, 1997. Savda v. Turkey, Application no. 42730/05, June 12, 2012. Scozzari and Giunta v. Italy, Application nos. 39221/98 and 41963/98, July 13, 2000 (GC). Soering v. the United Kingdom , Application no. 14038/88, June 26, 1989. Stec and others v. the United Kingdom, Application nos. 65731/01 and 65900/01, July 6, 2005 (GC). Tarhan v. Turkey, Application no. 9078/06, July 17, 2012. The Sunday Times v. the United Kingdom , Application no. 6538/74, April 26, 1979. Thlimmenos v. Greece, Application no. 34369/97, April 6, 2000 (GC). Tsaturyan v. Armenia , Application no. 37821/03, January 10, 2012. Tsirlis and Koulompas v. Greece, Application nos. 19233/91 and 19234/91, May 29, 1997. Tyrer v. the United Kingdom , Application no. 5856/72, April 25, 1978. Ülke v. Turkey, Application no. 39437/98, January 24, 2006. Valsamis v. Greece, Application no. 21787/93, December 18, 1996. Wingrove v. the United Kingdom , Application no. 17419/90, November 25, 1996. X and other v. Belgium (Belgian Linguistic Case), Application no. 1769/62, July 27, 1963. X v. Sweden , Application no. 9820/82, October 5, 1982. European Social Committee Quaker Council for European Affairs v. Greece, Complaint no. 8/2000, June 28, 2000 (Decision on the admissibility).

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Quaker Council for European Affairs v. Greece, Complaint no. 8/2000, April 25, 2001 (Decision on the merit). Inter-American Commission on Human Rights Alfredo D í az Bustos v. Bolivia , Case no. 14/04, Report nos. 52/04 (Admissibility decision on 13 October 2004 and 97/05 (Friendly settlement on October 27, 2005). Cristi á n Daniel Sahli Vera et al. v. Chile, Case no. 12.219, Report no. 43/05, March 10, 2005. Loren Laroye Riebe Star v. Mexico, Case no. 11.610, Report no. 49/99, April 13, 1999. Xavier Alejandro Le ón Vega v. Ecuador, Case no. 278–02, Report no. 22/06, March 2, 2006.

Inter-American Court of Human Rights The Last Temptation of Christ (Olmedo-Bustos et al.) v. Chile, Case no. 11.803, February 5, 2001. Domestic Canada Hinzman and Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 420, March 31, 2006. Hinzman and Hughey v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, April 30, 2007. Hinzman and Hughey v. Canada (Minister of Citizenship and Immigration), Supreme Court, 50078 (S.C.C.), November 15, 2007. Ramirez v. Canada (Minister of Employment and Immigration), Immigration Appeal Board, No. V86–6161, May 5, 1987. Germany Conscientious Objection , Federal Administrative Court (Bundesverwaltungsgericht), 12, 45 (1960). Conscientious Objection , Federal Administrative Court (Bundesverwaltungsgericht), 69, 1 (1985).

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Conscientious Objector v. Wehrdisziplinaranwalt, Ruling of the 1. Military Service Division (Wehrdienstsenat) of the Federal Administrative Court (Bundesverwaltungsgericht), BverwG 1 WDB 1.70, September 30, 1970. Hauptmann v. Wehrdisziplinaranwalt, 2nd Military Service Division (Wehrdienstsenat) of the Federal Administrative Court (Bundesverwaltungsgericht), BverwG 2 WD 12.04, June 21, 2005. United Kingdom Foughali v. Secretary of State for the Home Department , [2000] 00 /TH/01513/IAT, June 2, 2000. Krotov [AK (Russia-Chechnya deserter)] v. Secretary of the State for the Home Department , [2004] EWCA (Civ) 69, [2004] 1 W.L.R 1825; [2002] C1/2002/1537/IATRF; [2004] UKIAT 00294, October 29, 2004. R v. Immigration Appeal Tribunal and Secretary of State for the Home Department , ex parte Shah, [1997] Imm. A.R. 145, July 23, 1997. Sepet and B ü lb ü l v. Secretary of the State for the Home Department , the Supreme Court of Judicature Court of Appeal (Civil Division) on Appeal from the Immigration Appeal Tribunal, [2001] EWCA Civ. 681, Case no: C/2777 & C/2000/2794, May 11, 2001. Sepet and B ü lb ü l v. Secretary of the State for the Home Department , [2003] UKHL 15, March 20, 2003. United States of America Canas-Segovia v. Immigration and Naturalization Service, 902 F.2d 717, 1990 U.S. App. LEXIS 6169 (9th Cir. 1990). Gillette v. United States , 401 U.S. 437 (1971). Negre v. Larsen , 394 U.S. 968 (1969). Shein and others v. Minister of Defence, P.D. 48(3) 393 (1984). United States v. Cook, 92–0053 (1992). United States v. Seeger, 380 U.S. 163 (1965). Watson v. Geren , 569 F.3d 115 (2009). Welsh v. United States, 398 U.S. 333 (1970).

List of Treaties and Other International Instruments

International 1648 Treaty of Westphalia (consists of the Treaty of Münster between France and the Holy Roman Empire and the Treaty of Osnabrück between Sweden and the Holy Roman Empire). 1783 Treaty of Commerce and Amity (The United States of America and Sweden). 1785 Treaty of Commerce and Amity (The United States of America and Prussia). 1815 Treaty of Vienna (Austria, Great Britain, Prussia, Russia, and France). 1878 Treaty of Berlin (Austria-Hungary, France, Germany, Great Britain, Italy, Ottoman Empire, and Russia). 1881 International Convention of Constantinople (Austria-Hungary, France, Germany, Great Britain, Italy, Ottoman Empire, and Russia). 1898 Treaty of Paris (Spain and the United States of America). 1930 Forced Labour Convention, No. 29, 39 UNTS 55, adopted on June 28, 1930, entered into force on May 1, 1932. 1941 Atlantic Charter, signed on August 14, 1941. 1942 Declaration by the United Nations, 204 L.N.T.S. no. 4817, adopted on January 1, 1942. 1945 Charter of the United Nations, 1 UNTS XVI, adopted on June 26, 1945, entered into force on October 24, 1945. 1948 Universal Declaration of Human Rights, UNGA Res.172 A (III), adopted on December 10, 1948. 1950 Principles of the Nuremberg Tribunal, No. 82, Document A/1316, adopted on June 5–29, 1950. 1951 Convention relating to the Status of Refugees, 189 UNTS 150, adopted on July 28, 1951, entered into force on April 22, 1954. 1965 International Convention on the Elimination of All Forms of Racial Discrimination, 660 UNTS 195, adopted on December 21, 1965, entered into force on January 4, 1969. 1966 First Optional Protocol of the International Covenant on Civil and Political Rights, adopted on December 16, 1966, entered into force on March 23, 1976.

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1966 International Covenant on Civil and Political Rights, 999 UNTS 171, adopted on December 16, 1966, entered into force on March 23, 1976. 1966 International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, adopted on December 16, 1966, entered into force on January 3, 1976. 1967 Protocol Relating to the Status of Refugees, 606 UNTS 267, adopted on January 31, 1967, entered into force on October 4, 1967. 1969 Vienna Convention on the Law of Treaties, 1155 UNTS 331, adopted on May 23, 1969, entered into force on January 27, 1980. 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 2220 UNTS 93, adopted on December 18, 1990, entered into force on July 1, 2003.

Regional African 1981 African Charter on Human and Peoples’ Rights, 1520 UNTS 217, adopted on June 27, 1981, entered into force on October 21, 1986.

European 1949 Statute of the Council of Europe, ETS 001, adopted on May 5, 1949. 1950 European Convention on Human Rights, ETS 5, adopted on November 4, 1950, entered into force on September 3, 1953. 1961 European Social Charter, ETS 35, adopted on October 18, 1961. 1990 Document of the Copenhagen Meeting on the Human Dimension of the CSCE, signed on June 29, 1990. 1992 The Treaty on European Union (The Treaty of Maastricht), OJ C 191 of July 29, 1992, adopted on February 7, 1992, entered into force on November 1, 1993. 2000 Charter of Fundamental Rights of the European Union, 2000/C 364/01, OJ C 83 of March 30, 2010, adopted on December 7, 2000. 2007 Treaty of Lisbon, OJ C 306 of December 17, 2007, adopted on December 13, 2007, entered into force on December 1, 2009.

Inter-American 1948 American Declaration of the Rights and Duties of Man, adopted on May 2, 1948, Organization of American States, Res. XXX, OEA/Ser.L.V/II.82 doc.6 rev.1. 1948 Charter of the Organization of American States, adopted on April 30, 1948, entered into force on December 13, 1951, 119 UNTS 3. 1969 American Convention on Human Rights, adopted on November 22, 1969, entered into force on July 18, 1978, 1144 UNTS 123.

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2005 Ibero-American Convention on Young People’s Rights, adopted on October 10–11, 2005, entered into force on March 1, 2008.

Domestic Legal Instruments France 1789 Declaration of the Rights of Man and of the Citizen.

United Kingdom 1698 Toleration Act [An Act for exempting their Majesties Protestant Subjects dissenting from the Church of England from the Penalties of certain Laws]. 1807 Slave Trade Act [An Act for the Abolition of the Slave Trade] (in the British Empire). 1833 Slavery Abolition Act (in the British Empire). AGAIs Vol 5, Instruction 006-Retirement and Discharge on Grounds of Conscience for the Army, including the Territorial Army [D/AG/M/66/02]. AP3392 Vol. 5, Leaflet 113, Procedure for Dealing with Conscientious objectors within the Royal Air Force for the Air Force. Personnel, Legal, Administrative and General Orders 0801, Application for Discharge on Grounds of Conscientious Objection for the Navy.

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List of International Official Documents

International United Nations Commission on Human Rights Resolutions Resolution no. 38 (XXXVI), March 12, 1980. Resolution no. 40 (XXXVI), March 12, 1981. Resolution no. 1986/20, March 10, 1986. Resolution no. 1987/46, March 10, 1987. Resolution no. 1989/59, March 8, 1989. Resolution no. 1991/42, March 5, 1991. Resolution no. 1993/84, March 10, 1993. Resolution no. 1995/83, March 8, 1995. Resolution no. 1997/50, April 15, 1997. Resolution no. 1998/77, April 22, 1998. Resolution no. 2000/34, April 20, 2000. Resolution no. 2002/45, April 23, 2002. Resolution no. 2004/35, April 19, 2004.

United Nations General Assembly Resolutions Resolution no. 217A (III), December 10, 1948. Resolution no. 217E (III), December 10, 1948. Resolution no. 543 (VI), February 5, 1952. Resolution no. 2200A (XXI), December 16, 1966. Resolution no. 33/165, December 20, 1978. Resolution no. 35/206B, December 16, 1980. Resolution no. 39/72A, December 13, 1984. Resolution no. 50/183, December 22, 1995. Resolution no. 60/251, March 15, 2006.

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United Nations Human Rights Committee General Comments General Comment no. 18, “Non-Discrimination,” UN Doc. HRI/GEN/1/Rev.1, November 10, 1989. General Comment no. 22, “The Right to Freedom of Thought, Conscience and Religion,” UN Doc. CCPR/C/21/Rev.1/Add.4, July 30, 1993. General Comment no. 32, “Right to Equality before Courts and Tribunals and to a Fair Trial,” UN Doc. CCPR/C/GC/32, August 23, 2007. General Comment no. 33, “The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights,” UN Doc. CCPR/C/GC/33, November 5, 2008.

United Nations Human Rights Committee Concluding Observations Concluding observations of the Human Rights Committee: Azerbaijan (UN Doc. CCPR/CO/73/AZE of November 12, 2001). Concluding observations of the Human Rights Committee: Chile (UN Doc. CCPR/C/CHL/CO/5 of May 18, 2007). Concluding observations of the Human Rights Committee: Colombia (UN Doc. CCPR/CO/80/COL of May 26, 2004). Concluding observations of the Human Rights Committee: Dominican Republic (UN Doc. CCPR/CO/71/DOM of April 26, 2001). Concluding observations of the Human Rights Committee: Estonia (UN Doc. CCPR/CO/77/EST of April 15, 2003). Concluding observations of the Human Rights Committee: Finland (UN Doc. CCPR/CO/82/FIN of December 2, 2004). Concluding observations of the Human Rights Committee: Greece (UN Doc. CCPR/CO/83/GRC of April 25, 2005). Concluding observations of the Human Rights Committee: Kyrgyzstan (UN Doc. CCPR/CO/69/KGZ of July 24, 2000). Concluding observations of the Human Rights Committee on: Latvia (UN Doc. CCPR/CO/79/LVA of November 6, 2003). Concluding observations of the Human Rights Committee: Lithuania (UN Doc. CCPR/CO/80/LTU of May 4, 2004). Concluding observations of the Human Rights Committee: Mexico (UN Doc. CCPR/C/79/Add.109 of July 27, 1999). Concluding observations of the Human Rights Committee: Morocco (UN Doc. CCPR/CO/82/MAR of December 1, 2004). Concluding observations of the Human Rights Committee: Paraguay (UN Doc. CCPR/C/PRY/CO/2 of April 24, 2006). Concluding observations of the Human Rights Committee: Poland (UN Doc. CCPR/CO/82/POL of December 2, 2004). Concluding observations of the Human Rights Committee: Russian Federation (UN Doc. CCPR/CO/79/RUS of November 6, 2003).

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Concluding observations of the Human Rights Committee: Russian Federation (UN Doc. CCPR/C/RUS/CO/6 of November 24, 2009). Concluding observations of the Human Rights Committee: Serbia and Montenegro (UN Doc. CCPR/CO/81/SEMO of August 12, 2004). Concluding observations of the Human Rights Committee: Slovakia (UN Doc. CCPR/C/79/Add.79 of August 4, 1997). Concluding observations of the Human Rights Committee: Syrian Arab Republic (UN Doc. CCPR/CO/84/SYR of August 9, 2005). Concluding observations of the Human Rights Committee: Tajikistan (UN Doc. CCPR/CO/84/TJK of July 18, 2005). Concluding observations of the Human Rights Committee: The Republic of Korea (UN Doc. CCPR/C/KOR/CO/3 of November 28, 2006). Concluding observations of the Human Rights Committee: Ukraine (UN Doc. CCPR/CO/73/UKR of November 12, 2001). Concluding observations of the Human Rights Committee: Ukraine (UN Doc. CCPR/C/UKR/6 of November 28, 2006). Concluding observations of the Human Rights Committee: Venezuela (UN Doc. CCPR/CO/71/VEN of April 26, 2001). Concluding observations of the Human Rights Committee: Yemen (UN Doc. CCPR/CO/84/YEM of August 9, 2005).

United Nations Human Rights Committee Reports Austria, Ecuador, and Belarus, GAOR, Forty-seventh Session, Supplement no. 40 (A/47/40). Canada, GAOR, Thirty-fifth Session, Supplement no. 40 (A/35/40). Finland and Hungary, GAOR, Forty-first Session, Supplement no. 40 (A/41/40). Iceland, Australia, and Peru, GAOR, Thirty-eighth Session, Supplement no. 40 (A/38/40). Israel, GAOR, Fifty-eighth Session, Supplement no. 40 (A/58/40). Norway, GAOR, Thirty-sixth Session, Supplement no. 40 (A/36/40). Norway and the Netherlands, GAOR, Forty-fourth Session, Supplement no. 40 (A/44/40). Portugal and Saint Vincent and the Grenadines, GAOR, Forty-fifth Session, Supplement no. 40 (A/45/40). Spain, GAOR, Forty-sixth Session, Supplement no. 40 (A/46/40). Venezuela, GAOR, Forty-eighth Session, Supplement no. 40 (A/48/40). Venezuela, GAOR, Fifty-sixth Session, Supplement no. 40 (A/56/40). Vietnam, GAOR, Fifty-seventh Session, Supplement no. 40 (A/57/40).

United Nations Human Rights Council Resolutions Resolution no. 5/1, June 18, 2007. Resolution no. 6/4, September 28, 2007.

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United Nations Human Rights Council Universal Periodic Review Human Rights Council, Universal Periodic Review, Report of the Working Group on the Universal Periodic Review: Colombia, A/HRC/10/82, January 9, 2009 and A/HRC/10/82/Add.1, January 13, 2009. Human Rights Council, Universal Periodic Review: Report of the Working Group on the Universal Periodic Review, Israel, A/HRC/10/76, January 8, 2009. Human Rights Council, Universal Periodic Review: Report of the Working Group on the Universal Periodic Review, Turkey, stakeholders’ submissions, A/HRC /WG.6/8/TUR/3, February 17, 2010. Human Rights Council, Universal Periodic Review: Report of the Working Group on the Universal Periodic Review, Turkmenistan, A/HRC/10/79, January 6, 2009.

United Nations Office of the United Nations High Commissioner for Human Rights Report no. E/CN.4/2002/WP.2, March 14, 2002. Report no. E/CN.4/2004/55, February 16, 2004. Report no. E/CN.4/2006/51, February 27, 2006.

United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities Resolution Resolution no. 1987/18, March 10, 1987.

United Nations Working Group on Arbitrary Detention Opinions and Report Opinion no. 8/2008 (Colombia), May 8, 2008. Opinion no. 24/2003 (Israel), November 28, 2003. Opinion no. 36/1999 (Turkey), December 2, 1999. Opinion no. 16/2008 (Turkey), May 9, 2008. Report no. E/CN.4/2001/14, Recommendation no. 2, December 20, 2000.

Regional Council of Europe—Committee of Ministers Recommendations and Resolutions Recommendation no. 38, September 8, 1949. Recommendation no. R(87) 8, April 9, 1987. Recommendation no. (2010) 4, February 24, 2010.

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Resolution no. (51) 30, May 3, 1951. Resolution no. ResChs (2002) 3, March 6, 2002.

Council of Europe—Parliamentary Assembly Opinion, Recommendations and Resolutions Opinion no. 222 (2000), June 28, 2000. Recommendation no. 478 (1967), January 26, 1967. Recommendation no. 816 (1977), October 7, 1977. Recommendation no. 1518 (2001), May 23, 2001. Recommendation no. 1742 (2006), April 10–13, 2006. Resolution no. 337 (1967), January 26, 1967. Resolution no. 1380 (2004), June 22, 2004. Resolution no. 1532 (2007), January 23, 2007.

European Committee of Social Rights Conclusions European Committee of Social Rights: Conclusions XVIII-1 (Greece), (2006), Articles 1, 12, 13, 16 and 19 of the Charter. European Committee of Social Rights Conclusions XIX—1 (Greece), (November 2008), Articles 1, 9, 10, 15, and 18 of the Charter and Article 1 of the 1988 Additional Protocol. European Committee of Social Rights: Conclusions 2008 (Revised)—vol. 1 (Albania, Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, Estonia, Finland, France, Georgia, Ireland, Italy).

European Parliament Resolutions Resolution on Conscientious Objection, February 7, 1983, Doc.1–546/82. Resolution on Conscientious Objection and Alternative Civilian Service, October 13, 1989, Doc. A3–15/89, 1989 O.J. (C 291) 122, 11 (1989). Resolution on Conscientious Objection in the Member States of the Community, January 19, 1994, Doc. O. J. (C 44) 103.

Organization of American States Resolution Resolution no. 448, October 31, 1979.

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Notes

Introduction 1. C. C. Moskos and J. W. Chambers, “Introduction,” in The New Conscientious Objection: From Sacred to Secular Resistance, ed. C. C. Moskos and J. W. Chambers (Oxford: Oxford University Press, 1993), 3. 2 . N. T. K ı l ı nç , “The Morals and Politics of Conscientious Objection, Civil Disobedience and Anti-militarism,” in Conscientious Objection: Resisting Militarized Society, ed. Ö. H. Çı nar and C. Üsterci (London and New York: Zed Books, 2009), 61–65. 3. F. Sudre, Droit International et Europé en Des Droits de l’Homme (Paris: PUF, 1989), 158, cited in A. E. Öktem, Uluslararas ı Hukukta İnan ç Özg ü rlüğü (Ankara: Liberte Yay ı nlar ı, 2002), 394. 4 . M-F. Major, “Conscientious Objection and International Law: A Human Right?” Case Western Reserve Journal of International Law 24 (1992): 350. 5. See, for example, Ö. H. Çı nar and C. Üsterci, Conscientious Objection: Resisting Militarized Society (London and New York: Zed Books, 2009); Moskos and Chambers, “Introduction”; R. Barker, Conscience, Government and War: Conscientious Objection in Great Britain, 1939– 45 (London: Routledge and Kegan Paul, 1982); M. Q. Sibley and P. E. Jacob, Conscription of Conscience: The American State and the Conscientious Objector 1940– 1947 (New York: Cornell University Press, 1952); Major, “Conscientious Objection and International Law”; E. N. Marcus, “Conscientious Objection as an Emerging Human Right,” Virginia Journal of International Law 38 (1997–1998): 507–545; P. Schaffer and D. Weissbrodt, “Conscientious Objection to Military Service as a Human Right,” The Review International Commission of Jurists 9 (December 1972): 33–67. 6 . A statement was written by Service Civil International. This statement was then circulated by the Secretary-General of the UN in 1950, UN Doc. E/CN.4/NGO/1 Add. 1 (For further information see J. M. Engram, “Conscientious Objection to Military Service: A Report to the United Nations Divisions of Human Rights,” Georgia Journal of International and Comparative Law 12 (1982): 359–399 and Major, “Conscientious Objection and International Law,” 371). Krishnaswami submitted his report in 1959.

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8. 9.

10.

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There was a brief treatment of the right to conscientious objection (A. Krishnaswami, “Study of Discrimination in the Matter of Religious Rights and Practices,” UN Doc. E/CN.4/Sub. 2/200/Rev.1 (New York and Geneva: UN Publication, 1960). However, the first major report was written by M. Bauer, “Report on the Right to Conscientious Objection,” Doc. 2170 (Strasbourg: Consultative Assembly of the Council of Europe, Council of Europe, January 17, 1967). For other studies in the 1960s, see, for example, the Church in the Modern World “Pastoral Constitution,” Gaudium et Spes, no. 78–79 (Vatican: Second Vatican Council, 1965); the World Council of Churches, “Towards Justice and Peace in International Affairs,” the Fourth Assembly of Sec, II, A (Sweden: Uppsala, 1968). In the 1980s, there was another extensive report, written by A.- Eide and C. Mubanga-Chipoya, entitled “Conscientious Objection to Military Service,” UN Doc. No. E/CN.4/Sub. 2/1983/30, submitted to the Sub-Commission on Prevention of Discrimination and Protection of Minorities, 36th Session, June 27, 1983. D. Brett, “Military Recruitment and Conscientious Objection: A Thematic Global Survey” (Leuven and Geneva: Conscience and Peace Tax Intenational, 2006), 4. D. Weissbrodt and de la C. Vega, International Human Rights Law; An Introduction (Pennsylvania: University of Pennsylvania Press, 2007), 338. One case was brought before the African Court on Human and People’s Right (Soufiane Ababou v. People’s Democratic Republic of Algeria , June 16, 2011, Application no. 002/2011) at the time of writing (October 2013). The Court dismissed the application and sent the case back to the African Commission on Human and People’s Rights because the Respondent state had not deposited the declaration that allows individuals to petition the Court directly. For further information about the African human rights system see R. Gittleman, “The African Charter on Human and Peoples’ Rights: A Legal Analysis,” Virginia Journal of International Law 22 (1982): 667–714; E. A. Ankumah, The African Commission on Human and People’s Rights: Practice and Procedures (The Hague/London/Boston: Martinus Nijhoff, 1996); F. Ouguergouz, The African Charter Human and People’s Right: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa (The Hague: Martinus Nijhoff, 2003); African Commission on Human and Peoples’ Rights (July 19–23, 2010), 28th Activity Report of the African Charter on Human and Peoples’ Rights, EX.CL/600(XVII); F. Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007). Article 18 of the Universal Declaration of Human Rights (UDHR), UNGA Resolution no. 172 A (III), adopted on December 10, 1948; Article 18 of the International Covenant on Civil and Political Rights (ICCPR), 999 United Nations Treaty Series—UNTS—171, adopted on December 16, 1966, entered into force on March 23, 1976; Article 9 of the European Convention on Human Rights (ECHR), European Treaty Series—ETS—5, adopted on November 4, 1950, entered into force on September 3, 1953; Article 12 of

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the American Convention on Human Rights, 1144 UNTS 123, adopted on November 22, 1969, entered into force on July 18, 1978. 11. One of the latest book to be published in this field is Hitomi Takemura’s International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders (Heidelberg: Springer, 2008), in which the origins of the right to conscientious objection are briefly examined within the framework of the “prohibition of slavery and forced labour” (Article 8(3)(c)(ii) of ICCPR, Article 4(3)(b) of the ECHR, and Article 6(3)(b) of the AmrCHR). D. Christopher Decker and Lucia Fresa’s “The Status of Conscientious Objection under Article 4 of the European Convention on Human Rights,” New York University Journal of International Law and Politics 33 (2001): 379–418 also examine the issue within this framework. 12 . See, for example, the UN Human Rights Committee, the former European Commission of Human Rights and the European Court of Human Rights, the UN Commission on Human Rights, the UN General Assembly, the UN Human Rights Council, the Council of Europe Parliamentary Assembly, the Council of Europe Committee of Ministers, the EU Parliament, and the InterAmerican Commission on Human Rights.

1

Conscience and Freedom of Conscience

1. K. L. Lynch, “Voting One’s Conscience,” Society 42 (2005): 27; see also D. Shelton, “Conscientious Objection to Religious Groups,” in International Protection of Religious Freedom, ed. J.-F. Flauss (Bruxelles: Bruylant, 2002), 153; B. Vermeulen, “Scope and Limits of Conscientious Objections,” in Freedom of Conscience, Council of Europe (Strasbourg: Council of Europe, 1993), 76. 2 . Longman Group, Longman Dictionary of Contemporary English (Essex: Longman Group Limited Publications, 2000), 284. 3. A. Eide and C. Mubanga-Chipoya, “Conscientious Objection to Military Service,” UN Doc. E/CN.4/Sub.2/1983/30 (New York and Geneva: UN Publication, 1983), Para. 21. 4. A/C.3/SR.1021. For further information see L. M. Hammer, The International Human Right to Freedom of Conscience: Some Suggestions for Its Development and Application (Dartmouth: Ashgate, 2001), 116. 5. For further information on different bases of convictions see G. N. Taylor, The Legislative Tradition of Concientious Objection and Its Future in the Nuclear Age (PhD Thesis, London: King’s College London, 1994), 169–264; J. F. Childress, “Appeals to Conscience,” Ethics 89 (1979): 315–335; A. J. Bahm, “Theories of Conscience,” Ethics 75 (1965): 128–131; P. Fuss, “Conscience,” Ethics 74 (1964): 111–120; N. Rotenstreich, “Conscience and Norm,” Journal of Value Inquiry 27 (1993): 29–37; M. C. McGuire, “On Conscience,” Journal of Philosophy 60 (1963): 253–262.

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6. Louis Le Fur divides the evolutionary period of international law into three eras. The first era finishes at the end of the Middle Ages (the fifteenth century); the second period begins with the Renaissance (the fifteenth and sixteenth centuries) and Reformation (the sixteenth century) and continues until the nineteenth century, while the third period begins in the nineteenth century and continues until the present day (L. Le Fur, “La Théorie du Droit Naturel Depuis le XVIIème Siècle et la Doctrine Moderne,” RCADI 18 (1927– III): 266–267, cited in A. E. Öktem, Uluslararası Hukukta İnanç Özgürlüğü (Ankara: Liberte Yay ınları, 2002), 11). 7. See Article 18 of the Universal Declaration of Human Rights; Article 18 of the International Covenant on Civil and Political Rights (ICCPR); Article 9 of the European Convention on Human Rights (ECHR); Article 12 of the American Convention on Human Rights; Article 8 of the African Charter on Human and People’s Rights. 8. N. Lerner, Group Rights and Discrimination in International Law, International Studies in Human Rights, vol. 15 (The Hague: Martinus Nijhoff, 1991), 4. 9. For further discussion about the relationship between the concepts of religious tolerance and freedom of conscience see A. Krishnaswami, “Study of Discrimination in the Matter of Religious Rights and Practices,” UN Doc. E/CN.4/Sub. 2/200/Rev.1 (New York and Geneva: UN Publication, 1960), 4–11; M. McDougal, H. Lasswell, and L. Chen, Human Rights and World Public Order : The Basic Policies of an International Law of Human Dignity (New Haven, CT: Yale University Press, 1980), 663–664; Hammer, The International Human Right, 9–10; B. Dickson, “The United Nations and Freedom of Religion,” International and Comparative Law Quarterly 44 (1995): 331–332. 10. Krishnaswami, “Study of Discrimination,” 1–12; see also B. Tiernay, “Religious Rights: A Historical Perspective,” in Religious liberty in Western Thought, ed. N. B. Reynolds and Jr. W. C. Durham (Atlanta, GA: Scholars, 1996), 29. 11. See “Concerning Idolatry” (De idololatria) (in 198–202 AD) and “Concerning the Soldier’s Garland” (De corona militis) (in 211). For further information on Tertullian’s works see J. Helgeland, J. D. Robert, and J. P. Burns, Christians and the Military: The Early Experience (Philadelphia: Fortress, 1985); W. Hamel, Din ve Vicdan Hürriyeti (İstanbul: Yeni Asya Yay ınları, 1973), 23; see also E. Arnold, The Peace of God (Ashton Keynes, Wilts: The Plough Publishing House, 1940), 60–62. 12 . Hamel, Din ve Vicdan Hürriyeti, 23–24. 13. Tiernay, “Religious Rights,” 32. 14. See Matt. 5:44 in the Holy Bible—King James Version, 1611, available at http://www.online-literature.com/bible/Matthew/ (accessed September 30, 2013). 15. N. Blough, “Do Not Repay Anyone Evil for Evil ”—The Pacifism of the Gospel (Wetzalar: Church and Peace, 2000), 12. 16. Ibid., 34.

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17. Ibid., 36. 18. Krishnaswami, “Study of Discrimination,” 1–12; M. Bates, Religious Liberty: An Inquiry (New York: Harper and Brothers, 1945), 260–280. 19. P. Abelard, Peter Abelard’s Ethics (Oxford: Clarendon, 2002), 55–57, 67, 97, cited in Tiernay, “Religious Rights,” 37. 20. T. Aquinas, Summa Theologiae (Grand Rapids: Christian Classics Ethereal Library, 1947), pt. 1.2ae, quest. 19, Article 5, cited in Tiernay, “Religious Rights,” 37. 21. Bahm, “Theories of Conscience,” 128. 22 . J. Remmelink, “General Report,” in Freedom of Conscience, Council of Europe (Strasbourg: Council of Europe, 1993), 199. 23. H. Kamen, The Rise of Toleration (Verona: Arnoldo Mondodori, 1967), 20; see also Hammer, The International Human Right, 12. 24. Hammer, The International Human Right, 12. 25. M. Maneli, Freedom and Tolerance (New York: Octagon Books, 1984), 85–86; see also Hammer, The International Human Right, 12. 26. Blough, “Do Not Repay Anyone Evil for Evil ,” 12. 27. Kamen, The Rise of Toleration, 160. 28. Hamel, Din ve Vicdan Hürriyeti, 24. 29. Krishnaswami, “Study of Discrimination,” 11 and McDougal et al., Human Rights and World Public Order, 665. 30. See 1579 Union of Utrecht, Article XIII. For further information see also M. D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), 49 and Hamel, Din ve Vicdan Hürriyeti, 26. 31. Kamen, The Rise of Toleration, 224–225. 32 . Ibid.; see also Hammer, The International Human Right, 13–14. 33. It is also called the Peace of Westphalia which is commonly used to include the treaties of Münster and Osnabrück. The Treaty of Münster was signed by France and the Holy Roman Empire, and the Treaty of Osnabr ück was signed by Sweden and the Holy Roman Empire on October 24, 1648 (See D. Croxton, “The Peace of Westphalia of 1648 and the Origins of Sovereignty,” The International History Review 21 (1999): 569–591). 34. P. Lanarès, La Libertè Religieuse Dans les Conventions Internationales et Dans le Droit Public en Général (Paris: Horvath, 1964), 93–97 and R. Redslob, Historie des Grands Principes du Droit des Gens Depuis l’antiquité Jusqu’ à la veille de la Grande Guerre (Paris : Rouseeau et Cie, 1923), 215–216, cited in Öktem, Uluslararası Hukukta , 37. 35. M. Boegner, “L’Influence de la Réforme sur le Développement du Droit International,” Recueil des Cours de l’Académie de Droit Internaitonal 6 (1925): 304, cited in Öktem, Uluslararası Hukukta , 38–39. 36. M. Ganji, International Protection of Human Rights (Geneva: Librarie E. droz, 1962), 153; Hammer, The International Human Right, 15–16; D. A. J. Richards, Conscience and the Constitution: History, Theory, and Law of the Recontructions Amendments (Princeton: Princeton University Press, 1993), 66.

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37. Hamel, Din ve Vicdan Hürriyeti, 27. 38. M. Fitzpatrick, P. Jones, C. Knellwolf, and I. McCalman (eds.), The Enlightenment World (London and New York: Routledge, 2004), 53, 63, 466, 548. 39. J. Locke, A Letter Concerning Toleration (Huddersfield: J. Brook, 1796), 61–62. 40. Ibid., 95. 41. Krishnaswami, “Study of Discrimination,” 3. 42. Tiernay, B., “Religious Rights: A Historical Perspective,” in Religious liberty in Western Thought, ed. N. B. Reynolds and Jr. W. C. Durham (Atlanta, GA: Scholars Press, 1996), 54. notably, some thinkers, in referring to a Baptist pamphlet of 1661, asserted that freedom of conscience was part of Christianity (“Sion’s Groan,” in Underhill, ed., Tracts, 379, cited in Tiernay, “Religious Rights,” 51). 43. Krishnaswami, “Study of Discrimination,” 3–4. 44. Maneli, Freedom and Tolerance, 100–101; M. Fitzpatrick, “Enlightenment and Conscience,” in Religious Conscience, the State, and the Law: Historical Contexts and Contemporary Significance, ed. J. McLaren and H. Coward (New York: Suny Press, 1999), 50; Hammer, The International Human Right, 18. 45. The long title is “An Act for exempting their Majesties Protestant Subjects dissenting from the Church of England from the Penalties of certain Laws.” 46. Krishnaswami, “Study of Discrimination,” 5; see also A. Murdoch, “A Crucible for Change: Enlightenment in Britain,” in The Enlightenment World , ed. M. Fitzpatrick, P. Jones, C. Knellwolf, and I. McCalman (London and New York: Routledge, 2004), 104–116. 47. I. Kant, Religion within the Limits of Reason Alone, Book III, “The Victory of the Good over the Evil Principle, and the Founding of a Kingdom of God on Earth’ General Observation” (New York: Harper Torchbook, 1960), 129. For further information on this subject see H. J. Gilbert, The Right to Freedom of Belief: A Conceptual Framework (PhD Thesis, Colchester: University of Essex, 2001), 10–15; A. Schinkel, Conscience and Conscientious Objections (Amsterdam: Amsterdam University Press, 2006), 245–305. 48. McDougal et al., Human Rights and World Public Order, 666–667; Krishnaswami, “Study of Discrimination,” 4–5. 49. See the Declaration of the Rights of Man and of the Citizen, Approved by the National Assembly of France, August 26, 1789, Articles 5 and 10. 50. Approved by the National Assembly of France on August 26, 1789. 51. Declaration of the Rights of Man and of the Citizen, Article 10. 52 . 1783 Treaty of Commerce and Amity was signed by the United States of America and Sweden, Article 5. 53. 1785 Treaty of Commerce and Amity was signed by the United States of America and Prussia, Article 11. 54. Hammer, The International Human Right, 19; Bates, Religious Liberty, 487–488. 55. McDougal et al., Human Rights and World Public Order, 664; Hammer, The International Human Right, 17; Krishnaswami, “Study of Discrimination,” 1–3; Kamen, The Rise of Toleration, 125. 56. F. Capotorti, “Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities,” UN Doc. E.91.XIV.2 (New York and Geneva: UN Publication, 1991), 2; Hammer, The International Human Right, 19.

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57. The 1815 Treaty of Vienna was signed by Austria, Great Britain, Prussia, Russia, and France. 58. Article 2 of the Congress of Vienna of 1814 states: “There shall be no change in the articles of the Fundamental Law which assure to all religious cults equal protection and privileges, and guarantee the admissibility of all citizens, whatever be their religious creed, to public office and dignities.” (For further information see A. L. Del Russo, International Protection of Human Rights (Washington, DC: Lerner Law Books, 1971), 17; Hammer, The International Human Right, 19; Evans, Religious Liberty, 57–58). 59. The 1878 Treaty of Berlin was signed by Austria-Hungary, France, Germany, Great Britain, Italy, Ottoman Empire and Russia. 60. See Articles 5, 27, 35, 44 and 62. For further information on this Treaty see also Evans, Religious Liberty, 72; Hammer, The International Human Right, 20; McDougal et al., Human Rights and World Public Order, 669. 61. Hammer, The International Human Right, 21 [footnotes omitted]. 62 . The Slave Trade Act of 1807 abolished the slave trade in the British Empire and the Slavery Abolition Act of 1833 abolished slavery itself in the British Empire. In Northern states of the USA states slavery was officially abolished on January 1, 1808. For further information see Hammer, The International Human Right, 21–22; Richards, Conscience and the Constitution, 63–73. 63. Hammer, The International Human Right, 22; Richards, Conscience and the Constitution, 66. 64. H. D. Thoreau, On the Duty of Civil Disobedience (Minneapolis: Filiquarian Publishing, LLC, 2007), 6, 7, and 50. For further information on civil disobedience, conscience, and Thoreau see also Hammer, The International Human Right, 22–23; B. Russell, On Civil Disobedience (London: National Youth Campaign for Nuclear Disarmament, 1961); A. Harvey, Theory and Practice of Civil Disobedience (New Hampshire: Raymond, 1961). 65. The International Convention of Constantinople of 1881, which was signed by Austria, France, Great Britain, Prussia, Sardinia, Ottoman Empire, and Russia. The Treaty of Paris of 1898 was signed by Spain and the United States of America (For further information on these treaties see Evans, Religious Liberty, 65–68; see also W. Philliomore, Three Centuries of Treaties of Peace (London: John Murray, 1917)). 66. Article 22(5) states: “responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion.” (For further information on this mandate see Hammer, The International Human Right, 24; see also Evans, Religious Liberty, 83–103 and F. A. Wilson, The Origins of the League Covenant: Documentary History of Its Drafting (London: Hogarth, 1928), 106). 67. For further information see L. Sohn and T. Buergenthal (eds.), Basic Documents on International Protection of Human Rights (Indianapolis: The Bobbs-Merrill Company, 1973), 242, 244; see also McDougal et al., Human Rights and World Public Order, 671–672; Hammer, The International Human Right , 25; Evans, Religious Liberty, 132–135; Capotorti, “Study on the Rights,” 17–18.

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68. Evans, Religious Liberty, 161; Hammer, The International Human Right, 25–26; Krishnaswami, “Study of Discrimination,” 12. 69. Eide and Mubanga-Chipoya, “Conscientious Objection,” Para. 21; see also A/C.3/SR.1021. 70. Childress, “Appeals to Conscience,” 318; see also S. Freud, Group Psychology and the Analysis of the Ego (London: Hogarth and the Institute of PsychoAnalysis, 1921); D. Langston, Conscience and Other Virtues: From Bonaventure to MacIntyre (Pennsylvania: Pennsylvania State University Press, 2001); Shelton, “Conscientious Objection,” 154; Gilbert, The Right to Freedom of Belief, 46; C. Taylor, Source of the Self: The Making of the Modern Identity (Cambridge: Cambridge University Press, 1989), 27; Vermeulen, “Scope and Limits,” 76–78, Remmelink, “General Report,” 200. 71. K. Boyle, “Freedom of Conscience, Pluralism and Tolerance: Freedom of Conscience in International Law,” in Freedom of Conscience, Council of Europe (Strasbourg: Council of Europe, 1993), 38.

2 Conscientious Objection to Military Service 1. Parliamentary Assembly of the Council of Europe (PACE), Resolution no. 337 (1967), January 26, 1967; Commission on Human Rights (CHR), Resolution no. 1998/77, April 22, 1998; C. C. Moskos and J. W. Chambers, “Introduction,” in The New Conscientious Objection: From Sacred to Secular Resistance, ed. C. C. Moskos and J. W. Chambers (Oxford University Press: Oxford, 1993), 5–6; see also Ö. H. Çınar, “A View on International Implementation of the Right to Conscientious Objection,” in Conscientious Objection: Resisting Militarized Society, ed. Ö. H. Çınar and C. Üsterci (London and New York: Zed Books, 2009), 183–197 and F. Schneider, “European Standards on Conscientious Objection and Alternative Service,” in Conscientious Objection: Resisting Militarized Society, ed. Ö. H. Çınar and C. Üsterci (London and New York: Zed Books, 2009), 206–211. 2 . P. Mayer, “The Trial of Maximilianus,” in The Pacifist Conscience, ed. P. Mayer (London: Rupert Hart-Davis Ltd, 1966), 328–329; M. Kurlansky, Non-Violence the History of a Dangerous Idea (London: Jonathan Cape, 2006), 23–24; Moskos and Chambers, “Introduction,” 9. 3. For instance, Marcellus in 298 ad and Tarakhos of Cilicia in 303 ad were executed. For further information see P. Brock, Pacifism in Europe to 1914 (New Jersey: Princeton University Press, 1972), 14. 4. M. T. Karoubi, Just or Unjust War?: International Law and Unilateral Use of Armed Force by States at the Turn of the 20th Century (Burlington: Ashgate Publishing Company, 2004), 23. 5. Matthew 5:1–12. 6. Mathew 5:39. 7. Brock, Pacifism in Europe to 1914, 9; see also C. J. Cadoux, Early Christian Attitude to War—A Contribution to the History of Christian Ethics (London:

Notes

8. 9. 10.

11.

12.

13.

14.

15. 16.

17. 18.

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Headley Bros., 1919); C. J. Cadoux, Christian Pacifism Re-examined (Oxford: Blackwell, 1940); R. H. Bainton, Christian Attitudes Toward War and Peace: A Historical Survey and Critical Re-evaluation (Nashville: Abingdon, 1960); D. Shelton, “Conscientious Objection to Religious Groups,” in International Protection of Religious Freedom, ed. J.-F. Flauss (Bruxelles: Bruylant, 2002), 158. Original title “De idololatria” (in 198–202 ad). Original title “De corona militis” (in 211 ad). For further information on Tertullian’s works see J. Helgeland, J. D. Robert, and J. P. Burns, Christians and the Military: The Early Experience (Philadelphia: Fortress, 1985); Hamel, W., Din ve Vicdan Hürriyeti (İstanbul: Yeni Asya Yayınları, 1973); Arnold, E. The Peace of God (Ashton Keynes, Wilts: The Plough Publishing House, 1940). For further information about the Council of Arles see J. M. O’Donnell, The Canons of the First Council of Arles, 314 A.D. (Washington: Catholic University of American Press, 1961); see also A. von Harnack, Militia Christi : die Christliche Religion und der Soldatenstand in den Ersten Drei Jahrhunderten (Tübingen: Mohr (Paul Siebeck), 1905), cited in J. C. Wenger, “Pacifism and Biblical Nonresistance,” this paper was read at the Peace Witness Seminar, Evangelicals in Social Action, Eastern Mennonite College, November 30, 1967, Harrisonburg, Virginia, available at http://www.bibleviews.com/Biblicalnonresist.html (accessed September 30, 2013). For further information on the Just War doctrine see Saint Augustine, (426 ad), The City of God Against The Pagans [De Civitate Dei Contra Paganos], with an English Translation by William M. Green, vol. VI, Book: XIX (Boston: W. Heinemann, 1963); see also D. Wollenburg, “Is There a God-Pleasing Purpose to War?: An Introduction to Just War Concepts,” Concordia Journal 29 (2003): 65–69; N. Blough, “Do Not Repay Anyone Evil for Evil ”—The Pacifism of the Gospel (Wetzalar: Church and Peace, 2000); Calhoun, L., “Legitimate Authority and ‘Just War’ in the Modern World,” Peace and Change 27 (2002): 37–62. M. D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), 24–26; A. E. Öktem, Uluslararası Hukukta İnanç Özgürlüğü (Ankara: Liberte Yay ınları, 2002), 16; H. Grotius, De Jure Belli Ac Pacis Libti Tres (Oxford: Clarendon, 1934). Cadoux, Early Christian Attitude to War ; see also Cadoux, Christian Pacifism Re-examined; Bainton, Christian Attitudes Toward War and Peace ; Wenger, “Pacifism and Biblical Non-resistance”; Brock, Pacifism in Europe to 1914. Brock, Pacifism in Europe to 1914, 23. Martin Luther, “Oeuvres Tome IV,” 257, cited in Blough, “Do Not Repay Anyone Evil for Evil,” 11; Also for further information about Luther’s opinion on war see J. Koestlin, Luthers Theologie in Ihrer Geschichtlichen Entwicklung und in Ihrem Zusammenhang Dargestellt, 2nd ed., vol. II (Stuttgart: neu bearb. Aufl., 1901), 298–301. Moskos and Chambers, “Introduction,” 9. Ibid., pp. 9–10.

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19. The Anabaptists are also known as the Mennonites. For futher information on Anabaptists (Mennonites) see C. J. Dyck, (ed.), An Introduction to Mennonite History: A Popular History of the Anabaptists and the Mennonites (Scottdale: Herald, 1993); P. Brock, (ed.), Liberty and Conscience—A Documentary History of the Experiences of Conscientious Objection in America through the Civil War (Oxford and New York: Oxford University Press, 2002); see also P. Brock, Twentieth-Century Pacifism (New York: Van Nostrand Reinhold Company, 1970), 2–4; Moskos and Chambers, “Introduction,” 10; Kurlansky, NonViolence, 52. 20. Quakers are also called the Society of Friends. For futher information on Quakers see Quaker Peace and Social Witness, Faithful Deeds: A Rough Guide to the Quaker Peace Testimony (London: Quaker Books, 2002); Moskos and Chambers, “Introduction,” 11; Samuel, B., “The Beginnings of Quakerism,” available at http://www.quakerinfo.com/quakhist.shtml (accessed on September 30, 2013). 21. L. Verduin, That First Amendment and the Remnant (Sarasota, FL Christian Hymnary, 1998); see also A Statement by the Quakers to King Charles II (1660), cited in Friends in Christ, available at http://www.plainquaker. org/1660Declaration.html (accessed September 30, 2013). 22 . Moskos and Chambers, “Introduction,” 11; H. H. Stroup, The Jehovah’s Witnesses (New York: Russell and Russell, 1967); W. Kaplan, State and Salvation: The Jehovah’s Witnesses and Their Fight for Civil Rights (Toronto: University of Toronto Press, 1989). 23. Shelton, “Conscientious Objection to Religious Groups,” 160. 24. See the subheading in chapter 1, entitled “The Second Period: From the Renaissance and Reformation to the Nineteenth Century” (1.1.2). 25. W. Hamel, Din ve Vicdan Hürriyeti (İstanbul: Yeni Asya Yay ınları, 1973), 24; Blough, “Do Not Repay Anyone Evil for Evil ,” 12, Kamen, State and Salvation, 160. 26. Moskos and Chambers, “Introduction,” 11. 27. United States Selective Service System, (1950), “Conscientious Objection: Selective Service Monograph, No. 11,” Washington, DC.: GPO, 33, cited in Shelton, “Conscientious Objection to Religious Groups,” 160. 28. Ibid. 29. Ibid., p. 34, cited in Shelton, “Conscientious Objection to Religious Groups,” 160. 30. See, for example, Moskos and Chambers, “Introduction,” 9; Brock, Pacifism in Europe to 1914, 3. 31. Brock, Pacifism in Europe to 1914, 3. 32 . Karoubi, Just or Unjust War? 14; J. Ferguson, War and Peace in the World’s Religions (New York: Oxford University Press, 1978); D. R. Smock, (ed.), Religious Perspectives on War Christians, Muslim and Jewish Attitude Toward Force (Washington, DC: United States Institute of Peace Press, 2002); M. Q. Sibley, “Pacifism,” in International Encyclopaedia of the Social Science,

Notes

33. 34. 35.

36. 37.

38. 39.

40. 41. 42 . 43.

44. 45. 46.

47.

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vol. 11, ed. D. L. Sills and R. K. Merton (New York and London: Macmillan Company, 1968), 353. Kurlansky, Non-Violence, 7–9. Ibid., 8. American Friends Service Committee, “Speak Truth to Power, a Quaker Search for an Alternative to Violence: A Study of International Conflict” (Philadelphia, USA, 1955), 45. T. Merton (ed.), Gandhi on Non-violence (New York: New Directions, 1965), 65–79. See the statement of the Guyane Sanatan Dharma Maha Sabba, cited in P. Schaffer and D. Weissbrodt, “Conscientious Objection to Military Service as a Human Right,” The Review International Commission of Jurists 9 (December 1972): 37. Kurlansky, Non-Violence, 7–12. Torah Deuteronomy 20:10–12 and Maimonides, Kingship 6:5. For further information on Jewish attitude toward war and conscientious objection see Smock, Religious Perspectives on War Christians, 13–19; Kurlansky, NonViolence, 13–14; Schaffer and Weissbrodt, “Conscientious Objection,” 37. Qur’an İsrâ 50:33; Furkan 42:68; Maide 5:32. Qur’an Surah: 190–194. For further information see Schaffer and Weissbrodt, “Conscientious Objection,” 36. K. Cobb, (September 23, 2001), “A Season of Violence,” available at http:// articles.courant.com/2001– 09–23/news/0109230678_1_islam-god-and -muhammad-muslims/2 , 2 (accessed September 30, 2013). Heavenly religions or the Abrahamic religions—Islam, Christianity, and Judaism. P. Selek, Barışamadık (İstanbul: İthaki Yay ıncı lı k, 2004), 33. Moskos and Chambers, “Introduction,” 9; P. Ramsey, War and the Christian Conscience (Durham, NC: Duke University Press, 1961); G. Nuttal, Christian Pacifism in History (Oxford: Oxford University Press, 1958). M. Levi, Consent, Dissent and Patriotism (Cambridge: Cambridge University Press, 1992), 12. For further information see I. Woloch, “Napoleonic Conscription: State Power and Civil Society,” Past and Present 111 (1986): 101–129; D. Stoker, F. C. Schneid, and H. D. Blanton (eds.), Conscription in the Napoleonic Era: A Revolution in Military Affairs? (New York: Routledge, 2008); R. S. Alexander, Bonapartisim and Revolutionary Tradition in France: The Fédéré s of 1815 (Cambridge: Cambridge University Press, 1991); D. Showalter, “1815–1864 Avrupa’nın Sava ş Tarzı,” in Dretnot, Tank ve Uç ak. Modern Çağda Sava ş Sanatı 1815–2000, ed. J. Black (İstanbul: Kitap Yay ınevi, 2003); A. Vagts, A History of Militarism Civilian and Military (New York: The Free Press, 1959); S. P. Huntington, The Soldier and The State (Cambridge: Harvard University Press, 1985); U. Bröckling, Disiplin Askeri İtaat Üretiminin Sosyolojisi ve Tarihi (İstanbul: Ayrıntı Yay ınları, 2001); A. Giddens, The

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48. 49. 50. 51.

52 .

53. 54. 55. 56. 57.

58.

59. 60. 61.

62.

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Nation-State and Violence: Volume 2 of A Contemporary Critique of Historical Materialism (Berkeley: University of California Press, 1985). Shelton, “Conscientious Objection to Religious Groups,” 160. K. Faulks, Citizenship (Routledge: London and New York, 2000), 30–31. Y. N. Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago and London: University of Chicago Press, 1994), 164. M. McDougal, H. Lasswell, and L. Chen, Human Rights and World Public Order : The Basic Policies of an International Law of Human Dignity (New Haven, CT: Yale University Press, 1980), 666–667; A. Krishnaswami, 1960, “Study of Discrimination in the Matter of Religious Rights and Practices,” UN Doc. E /CN.4/Sub. 2/200/Rev.1, UN Publication: New York and Geneva, 4–5. For further information see Shelton, “Conscientious Objection to Religious Groups,” 160; Faulks, Citizenship, 30–31; Soysal, Limits of Citizenship, 164; C. Tilly, “War Making and State Making as Organised Crime,” in Bringing the State Back In, ed. P. B. Evans, D. Rueschemeyer, and T. Skocpol (Cambridge and London: Cambridge University Press, 1985); Huntington, The Soldier and The State ; Bröckling, Disiplin Askeri İtaat Üretiminin Sosyolojisi ve Tarihi; Giddens, The Nation-State and Violence. Shelton, “Conscientious Objection to Religious Groups,” 161. Moskos and Chambers, “Introduction,” 198. Bröckling, Disiplin Askeri İtaat Üretiminin Sosyolojisi ve Tarihi, 390; Moskos and Chambers, “Introduction,” 12. Shelton, “Conscientious Objection to Religious Groups,” 161. Statement of the Second Vatican Council on December 7, 1965, cited in Shelton, “Conscientious Objection to Religious Groups,” 161; see also K. Boyle, “Freedom of Conscience, Pluralism and Tolerance: Freedom of Conscience in International Law,” in Freedom of Conscience, Council of Europe (Strasbourg: Council of Europe, 1993), 42; B. Tiernay, “Religious Rights: A Historical Perspective,” in Religious liberty in Western Thought, ed. N. B. Reynolds and Jr. W. C. Durham (Atlanta, GA: Scholars, 1996), 30; W. M. Abbot, The Document of Vatican II (New York: G. Chapman: 1966), 678–680. World Synod of Catholic Bishops, “Justice in the World,” 1971, Para. 65, available at http://www.shc.edu/theolibrary/resources/synodjw.htm (accessed September 30, 2013). Shelton, “Conscientious Objection to Religious Groups,” 161. Brock, Liberty and Conscience, 2. D. Prasad, War Is a Crime against Humanity: The Story of War Resisters’ International (London: War Resisters’ International, 2005); see also War Resisters’ International website, available at http://www.wri-irg.org and War Resisters’ International Archives, available at http://www.iisg.nl/archives/en /files/w/10773401full.php (accessed September 30, 2013). Peace Pledge Union, “Refusing to Kill: Conscientious Objection and Human Rights in the First World War” (London: Peace Pledge Union Publication, 2006), 7.

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63. Brock, Liberty and Conscience, 10–12. 64. Decisions of the Conference of the Russian Social Democratic Labour Party, “Resolutions on the Imperialist War,” Pacifism and the Peace Slogan, available at http://www.international-communist-party.org/BasicTexts/English /15LeniGE.htm (accessed September 30, 2013). 65. This pamphlet, entitled “Socialism and War,” was written by Vladimir Ilyich Lenin in 1915 and distributed among the delegates to the Zimmerwald Socialist Conference. It is available at http://www.marxists.de/war/lenin-war /ch1.htm (accessed September 30, 2013)). 66. B. Williams, “Morality, Scepticism and the Nuclear Arms Race,” in Objections to Nuclear Defence: Philosophers on Deterrence, ed. N. Blake and K. Poole (Routledge and Kegan Paul: London, 1984), 101. For further information on anarchism see also Karoubi, Just or Unjust War?, 44–45. 67. L. Tolstoy, The Law of Love and the Law of Violence (New York: Rudolph Field, 1948) and B. de Light, The Conquest of Violence: An Essay on War and Revolution (London: G. Routledge and sons, 1937). 68. Catalonia is an autonomous region within the Kingdom of Spain. During the civil war (between 1936 and 1939) anarchists and socialists came from many countries as volunteers to take part in the war against General Francisco Franco. 69. M. Ceadel, Thinking about Peace and War (Oxford: Oxford University Press, 1989), 149–150. 70. Selek, Barışamadık, 49. 71. U. Bröckling, “Modası Geçmiş Sava ş, Askerlerin Geleceği ve Antimilarizmin Perspektifleri,” in Anarşizmin Bugünü, ed. H-J. Değen (İstanbul: Ayrınt ı Yay ınları, 1999), 155; see also Selek, Barışamadık, 51. 72 . R. Saigol, “Militarizasyon, Ulus ve Toplumsal Cinsiyet: Şiddetli Çat ışma Alanları Olarak Kad ın Bedenleri,” in Vatan Millet Kadınlar, ed. A. G. Alt ınay (İstanbul: İletişim Yay ınları, 2004), 217. 73. A. Speck, “Dünyada Ça ğda ş Red ve Red Hareketlerinin Ana Hatları: Sava ş Karşıt ı Uluslararası Hareket İçinde Red,” Birikim 207 (2006): 53. 74. N. T. K ı lınç, “The Morals and Politics of Conscientious Objection, Civil Disobedience and Anti-militarism,” in Conscientious Objection: Resisting Militarized Society, ed. Ö. H. Çınar and C . Üsterci (London and New York: Zed Books, 2009), 70–71; see also L. M. Friedman, The Republic of Choice: Law, Authority, and Culture (Cambridge, MA: Harvard University Press, 1990). 75. D. C. Decker and L. Fresa, “The Status of Conscientious Objection under Article 4 of the European Convention on Human Rights,” New York University Journal of International Law and Politics 33 (2001): 397; K ı lınç, “Morals and Politics,” 70–71; M-F. Major, “Conscientious Objection and International Law: A Human Right?” Case Western Reserve Journal of International Law 24 (1992): 355; E. N. Marcus, “Conscientious Objection as an Emerging Human Right,” Virginia Journal of International Law 38 (1997–1998): 538–544.

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76. K ı lınç, “Morals and Politics,” 61–65; see also H. Arendt, Crises of the Republic (New York: Harcourt Brace, 1969); M. Walzer, Obligations: Essays on Disobedience, War and Citizenship (Cambridge: Cambridge University Press, 1970); J. Rawls, A Theory of Justice (Boston, MA: Harvard University Press, 1971), 24–29. 77. H. Arendt, Crises of the Republic: Lying in Politics, Civil Disobedience on Violence, Thoughts on Politics, and Revolution (San Diego: Harcourt Brace Jovanovich, 1972), 64. 78. Sydney Turner, Deptford Tribunal, 1916, cited in Peace Pledge Union, “Refusing to Kill,” 5. Sydney Turner was a conscientious objector. He was prosecuted for failing to serve military service. 79. The Court in Welsh v. United States (398 U.S. 333 (1970)) held that “ethical and moral beliefs” were as valid as religious convictions. The Court clearly extended the content of convictions in this judgment, because it had only addressed religious convictions in the case of United States v. Seeger (380 U.S. 163 (1965)). Indeed, the Court had held in United States v. Seeger (173–180) that “a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for the exemption.” 80. Moskos and Chambers, “Introduction,” 196.

3 Categories of Objectors to Military Service 1. J. H. Stanfield II, “The Dilemma of Conscientious Objection for AfroAmericans,” in The New Conscientious Objection: From Sacred to Secular Resistance, ed. C. C. Moskos and J. W. Chambers (Oxford: Oxford University Press, 1993), 45. 2 . D. Brett, “Military Recruitment and Conscientious Objection: A Thematic Global Survey” (Leuven and Geneva: Conscience and Peace Tax Intenational, 2006), 100. 3. C. C. Moskos and J. W. Chambers, The New Conscientious Objection: From Sacred to Secular Resistance (Oxford: Oxford University Press, 1993), 5. 4. P. Brock, Twentieth-Century Pacifism (New York: Van Nostrand Reinhold Company, 1970), 40–43. 5. D. J. Eberly, “Alternative Service in a Future Draft,” in The New Conscientious Objection: From Sacred to Secular Resistance, ed. C. C. Moskos and J. W. Chambers (Oxford: Oxford University Press, 1993), 57–64; S. Rodotà, “Conscientious Objection to Military Service,” in Freedom of Conscience, Council of Europe (Strasbourg: Council of Europe, 1993), 95. 6. M. Lippman, “The Recognition of Conscientious Objection to Military Service as an International Human Right,” California Western International Law Journal 21 (1990/1991): 31. 7. Peace Pledge Union, “Refusing to Kill: Conscientious Objection and Human Rights in the First World War” (London: Peace Pledge Union Publication,

Notes

8. 9. 10. 11. 12.

13.

14.

15.

16.

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2006), 9; see also Moskos and Chambers, The New Conscientious Objection, 70 and 100. In the present day, noncombatant service is described as unarmed military service, and is rejected by total objectors. Peace Pledge Union, “Refusing to Kill,” 9 Roger N. Baldwin was a director of the National Civil Liberties Bureau in 1918. S. C. Tucker (ed.), The Encyclopaedia of World War I—A Political, Social, and Military History (Santa Barbara, CA: ABC-CLIO, 2005), 1568. There were around 6,500 total conscientious objectors in the UK during the First World War, while the figure in the USA was only 450. Interestingly, in the Second World War, while in the UK the figure was 3,500, in the USA it was 6,000 (R. Barker, Conscience, Government and War: Conscientious Objection in Great Britain, 1939–45 (London: Routledge and Kegan Paul, 1982); M. Q. Sibley and P. E. Jacob, Conscription of Conscience: The American State and the Conscientious Objector 1940–1947 (New York: Cornell University Press, 1952), 354–355; Moskos and Chambers, The New Conscientious Objection, 12; J. Rae, Conscience and Politics: The British Government and the Conscientious Objector to Military Service 1916–1919 (London: Oxford University Press, 1970), 167, 201, 203, 214, 228; the documentary of “Not Forgotten: The Men Who Wouldn’t Fight,” Channel 4, UK, broadcasted on November 10, 2008). In the present day, in Finland, there are approximately 70 total objectors per year; and in Norway, between 100 and 200 total objectors per year refuse to perform military service and alternative service (M. Stolwijk, “The Right to Conscientious Objection in Europe: A Review of the Current Situation” (Brussels: Quaker Council for European Affairs, 2005; updated in 2008), available at http://www.qcea.org/ work/human-rights/conscientious-objection/ (accessed September 30, 2013)). A. Krishnaswami, 1960, “Study of Discrimination in the Matter of Religious Rights and Practices,” UN Doc. E/CN.4/Sub. 2/200/Rev.1, UN Publication: New York and Geneva, 43–44. Peace Pledge Union, “Refusing to Kill,” 38. Rae states that there were 985 absolutist conscientious objectors in prison. In addition to being imprisoned during wartime, total conscientious objectors were subjected to significant oppression by the state and persecuted by society after the war (Rae, Conscience and Politics, 167, 201, 203, 214, 228). T. Pflüger, “Professional Soldiers and the Right to Conscientious Objection in the European Union” (Brussels and London: GUE/NGL and WRI, 2008), 27; see also War Resisters’ International (January 22, 2009), “Conscientious Objection: Legal Practices and Frameworks Among EU Member States,” War Resisters’ International: London, 6; Stolwijk, “The Right to Conscientious Objection in Europe.” In some studies the term “substitute service” is used instead of “alternative service” (see Refusing to Bear Arms Report, dated 1998, cited in Brett, “Military Recruitment and Conscientious Objection,” 105).

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17. See, for example, Article 8(3)(c)(ii) of ICCPR, Article 4(3)(b) of the ECHR, Article 6(3)(b) of the AmrCHR. 18. Brett, “Military Recruitment and Conscientious Objection,” 105. 19. For instance, alternative service as a duty performed for the state in Austria where conscientious objectors might be sentenced to up to two years’ imprisonment (see Article 54a of the Civil Service Act and Article 7(1), (2) and 12(1), (2) of the Military Penal Code in Austria). 20. Brett, “Military Recruitment and Conscientious Objection,” 105; see also Pflüger, “Professional Soldiers,” 9. 21. Brett, “Military Recruitment and Conscientious Objection,” 108. 22. Peace Pledge Union, “Refusing to Kill,” 8–9; see also Peace Pledge Union, “Conscientious Objection in Britain during the Second World War,” available at http://www.ppu.org.uk/learn/infodocs/cos/st_co_wwtwo.html (accessed September 30, 2013). 23. Brett, “Military Recruitment and Conscientious Objection,” 105 24. Peace Pledge Union, “Refusing to Kill,” 8. 25. These men contributed more than eight million man-days of work. For further information see MCPS Bulletin, July 11, 1946, cited in Sibley and Jacob, Conscription of Conscience, 124. 26. In the UK, by the end of March 1945, the number of alternativist conscientious objectors was 24,625 (Moskos and Chambers, The New Conscientious Objection, 71). During the world wars the UK had noncombatant conscientious objectors in addition to alternativist objectors. (For further information see Peace Pledge Union, “Refusing to Kill,” 8; Moskos and Chambers, The New Conscientious Objection, 72; L. S. Bibbings, Telling Tales about Men Conceptions of Conscientious Objectors to Military Service During the First World War (Manchester and New York: Manchester University Press, 2009), 36–40; Brock, Twentieth-Century Pacifism, 177–181). During the First World War 3,300 conscientious objectors served in the NCC, 100 in the Royal Army Corps and 1,200 in the Friends Ambulance Unit (J. W. Graham, Conscription and Conscience: A History 1916– 1919 (London: George Allen and Unwin Ltd., 1922), 349. 27. Peace Pledge Union, “Refusing to Kill,” 8. 28. “The Position of the Conscientious Objector” (1916), the leaflet in the Library of Friends’ House, London, cited in F. L. Carsten, War against War: British and German Radical Movements in the First World War (London: Batsford Academic and Educational, 1982), 68. 29. Peace Pledge Union, “Refusing to Kill,” 8. 30. There is no alternative service in Turkey and Azerbaijan (Ö. H. Çınar, “A View on International Implementation of the Right to Conscientious Objection,” in Conscientious Objection: Resisting Militarized Society, ed. Ö. H. Çınar and C . Üsterci (London and New York: Zed Books, 2009), 184–192). For further information see D. Brett, 2012, “The Report to the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament- Conscientious

Notes

31. 32 .

33. 34.

35.

36.

37. 38.

39.

40.

41.

42 .

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Objection to Military Service in Europe 2011/2012,” European Bureau for Conscientious Objection: Brussels. Stolwijk, “The Right to Conscientious Objection in Europe.” A. Eide and C. Mubanga-Chipoya, 1983, “Conscientious Objection to Military Service,” UN Doc. E/CN.4/Sub.2/1983/30, UN Publication: New York and Geneva, 13 and Stolwijk, “The Right to Conscientious Objection in Europe.” Eide and Mubanga-Chipoya, “Conscientious Objection to Military Service,” 18. General Counsel of Jehovah’s Witnesses, evidence submitted to the OHCHR, February 1, 2005, cited in Brett, “Military Recruitment and Conscientious Objection,” 108. D. Brett, 2013, “Annual Report: Conscientious Objection to Military Service in Europe 2013,” European Bureau for Conscientious Objection: Brussels, 47. Report of the Legal Committee, Consultative Assembly of the Council of Europe, 18th Ordinary Session, Doc. No. 2170(1967). The text was adopted by the Parliamentary Assembly on 26 January 1967. PACE, 29th Ordinary Session, Official Report—10th Sitting, October 7, 1977. Currently, 13 Member States of the Council of Europe allow alternative service (including alternative civilian service and unarmed military service). For further information see European Bureau for Conscientious Objection, “Report to the Council of Europe—The Right to Conscientious Objection in the Council of Europe Member States” (Brussels: European Bureau for Conscientious Objection, 2011), i, ii, 62, 63. S. Michalowski, and L. Woods, German Constitutional Law: The Protection of Civil Liberties (Hants: Ashgate, 1999), 198; see also Eide and MubangaChipoya, “Conscientious Objection to Military Service,” 18. CHR, Resolution no. 1993/84, March 10, 1993, Para. 6; CHR, Resolution no. 1998/77, Para. 4; Council of Europe, Committee of Ministers, Recommendation no. R (87)8, April 9, 1987, Para. 9; PACE, Recommendation no. 1518 (2001), May 23, 2001, Para. 5(iv); European Parliament, Resolution on Conscientious Objection in the Member States of the Community, January 19, 1994, Doc. OJ (C 44) 103, Para. F/9; CSCE, Document of the Copenhagen Meeting on the Human Dimension of the CSCE, June 29, 1990, Para. 18.4. Article 12a(2) states “Any person who, on grounds of conscience, refuses to render military service involving the use of arms may be required to perform alternative service. The duration of alternative service shall not exceed that of military service ” (emphasis added). Conscientious Objection, Federal Administrative Court (Bundesverwaltungsgericht), 12, 45 (1960); Conscientious Objection, Federal Administrative Court

196

43. 44. 45. 46. 47.

48.

49.

50. 51. 52 . 53. 54. 55. 56.

57. 58.

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(Bundesverwaltungsgericht), 69, 1 (1985) cited in Michalowski and Woods, German Constitutional Law, 197–198. Michalowski and Woods, German Constitutional Law, 197–198. Eide and Mubanga-Chipoya, “Conscientious Objection to Military Service,” 18. Foin v. France, Communication no. 666/1995, November 9, 1999, UN Doc. CCPR/C/D/666/1995; CHR Resolution no. 1988/77, Para. 4. Moskos and Chambers, The New Conscientious Objection, 6–8. Çınar, Ö. H., “A View on International Implementation of the Right to Conscientious Objection,” in Conscientious Objection: Resisting Militarized Society, ed. Ö. H. Çınar and C. Üsterci, 188–193 (London and New York: Zed Books, 2009); see also B. Horeman and M. Stolwijk, “Refusing to Bear Arms: A Worldwide Survey of Conscription and Conscientious Objection to Military Service” (London: War Resisters’ International, 1998; updated in 2005), available at www.wri-irg.org/co/rtba/index.html (accessed September 30, 2013); and Stolwijk, “The Right to Conscientious Objection in Europe.” See, for example, Gillette v. United States, 401 U. S. 437 (1971); see also United States v. Cook, 92–0053 (1992); Hauptmann v. Wehrdisziplinaranwalt, 2nd Military Service Division (Wehrdienstsenat) of the Federal Administrative Court (Bundesverwaltungsgericht), BverwG 2 WD 12.04, June 21, 2005, available at http://lcnp.org/global/Germanrefusercase.pdf (accessed September 30, 2013). E. N. Marcus, “Conscientious Objection as an Emerging Human Right,” Virginia Journal of International Law 38 (1997–1998): 541; see also M. Lippman, “The Recognition of Conscientious Objection to Military Service as an International Human Right,” California Western International Law Journal 21 (1990/1991): 31. See, for example, Gillette v. United States; Negre v. Larsen, 394 U. S. 968 (1969). The Vietnam War took place between November 1, 1955 and April 30, 1975. See, for example, Shein and others v. Minister of Defence, P. D. 48(3) 393 (1984). The first Lebanon War took place between June 6, 1982 and May 31, 1985. See, for example, United States v. Cook. The Persian Gulf War took place between August 2, 1990 and February 28, 1991. See, for example, Hauptmann v. Wehrdisziplinaranwalt. The Iraq War began on March 20, 2003 as a military campaign. It ended on December 15, 2011. See, for example, Watson v. Geren, 569 F.3d 115 (2009). Principles of the Nuremberg Tribunal, No. 82, Document A/1316, adopted on June5–July 29, 1950. E.-I. A. Daes, 1983, “Freedom of the Individual under Law: An Analysis of Article 29 of the Universal Declaration of Human Rights,” UN Doc. E/CN.4 /Sub. 2/432/Rev.2, United Nations Publication: New York, 42 and 57. Eide and Mubanga-Chipoya, “Conscientious Objection to Military Service,” Para. 51. Principle II states: “[t]he fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.” For further information see B. Forbes, “Conscientious Objection to Taxation,”

Notes

59.

60.

61.

62 .

63.

64.

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in Freedom of Conscience, Council of Europe (Strasbourg: Council of Europe, 1993), 126; see also C. Whittome, Conscientious Objection to Military Service: A Human Right? (Masters Dissertation, Colchester: University of Essex, 1984), 86–92; M-F. Major, “Conscientious Objection and International Law: A Human Right?” Case Western Reserve Journal of International Law 24 (1992): 364–365 and C. D. de Jong, The Freedom of Thought, Conscience and Religion or Belief in the United Nations (1946–1992) (Antwerpen-Groningen-Oxford: Intersentia, 2000), 178. CHR, Resolution no. 1995/83, March 8, 1995, Para. 4. This resolution urges States not to differentiate between conscientious objectors on the basis of the nature of their particular beliefs nor to discriminate against recognized conscientious objectors for failure to perform military service, in both law and practice; see also Marcus, “Conscientious Objection as an Emerging Human Right,” 541; L. M. Hammer, The International Human Right to Freedom of Conscience: Some Suggestions for Its Development and Application (Dartmouth: Ashgate, 2001), 225; J. E. Capizzi, “Selective Conscientious Objection in the United States,” Journal of Church and State 38 (1996): 359–363; J. P. C. Fogarty, “The Right Not to Kill: A Critical Analysis of Conscientious Objection and the Problem of Registration,” New England Law Review 18 (1982–1983): 678. Council of Europe, Committee of Ministers, Recommendation no. (2010) 4, February 24, 2010, Para. 42; PACE, Recommendation no. 1518 (2001), Para. 5(ii). Germany accepts objection to the use of chemical weapons as a ground for a conscientious objection claim (Hammer, The International Human Right, 222); The use of nuclear weapons formed the subject of the Godefriedus Maria Brinkhof v. the Netherlands case before the Human Rights Committee (Godefriedus Maria Brinkhof v. the Netherlands, Communication no. 402/1990, July 30, 1993, UN Doc. CCPR/C/48/D/402/1990). Furthermore, the International Court of Justice ruled that chemical and nuclear weapons could be used in the event of a state being at serious risk (Legality of the Threat or Use of Nuclear Weapons, (Advisory Opinion), [1996] ICJ Rep. 226, July 8, 1996). By an amendment to its Law on Exemption of Military Service for Reasons of Conscientious Objection, Norway accepts objection to the use of weapons of mass destruction (Stolwijk, “The Right to Conscientious Objection in Europe”). For the general reference see E. Siesby, “Conscientious Objection in Danish Law” in the proceedings of the meeting of the European Consortium for Church-State Research, (1992), Conscientious Objection in the EC Countries, Mailand (proceedings of the meeting, December 7–8, 1990, Leuven: Brussels); see also Stolwijk, “The Right to Conscientious Objection in Europe.” and European Bureau for Conscientious Objection, 2011, “Report to the Council of Europe,” ii. AGAIs Vol 5, Instruction 006-Retirement and Discharge on Grounds of Conscience for the Army, including the Territorial Army, [D/AG/M/66/02];

198

65. 66 .

67. 68.

69.

70.

71.

72 .

73.

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AP3392 Vol. 5, Leaflet 113, Procedure for Dealing with Conscientious objectors within the Royal Air Force for the Air Force; Personnel, Legal, Administrative and General Orders 0801, Application for Doscharge on Grounds of Conscientious Objection for the Navy. For further information see also Pflüger, “Professional Soldiers,” 56–57. Instruction 006—Retirement and Discharge on Grounds of Conscience for the Army, Paras. 2 and 9. Ibid., Paras. 5 and 6; notably, “[d]ischarges due to conscientious objection are rare, with only six granted between 2001 and 2010” (This information was supplied by the Ministry of Defence under the Freedom of Information Act –No. 06–01–2011–170837–002, January 24, 2011, available at http://webarchive.nationalarchives.gov.uk/20121026065214/http:/www .mod.uk/NR/rdonlyres/55452707-14B4-40AC-BE89-9A069D18C107/0 /FOI _06012011170837002 _Conscientious _Objectors.pdf (accessed September 30, 2013), cited in Forces Watch Briefing, (February 2011), “Conscientious Objection in the UK Armed Forces,” Forces Watch; London, 1). Forces Watch Briefing, 1. Malcolm Kendall-Smith did not describe himself as a conscientious objector. He claimed that the war in Iraq was illegal and a crime under international law. For further information see Stewart Payne, “RAF officer faces trial over ‘illegal war’ claim,” The Telegraph, March 16, 2006, available at http://www .telegraph.co.uk/news/uknews/1513105/R AF-officer-faces-trial-over-illegal -war-claim.html (accessed September 30, 2013). “RAF Doctor Jailed Over Iraq Refusal,” The Guardian, April 13, 2006, available at http://www.guardian.co.uk/uk/2006/apr/13/military.iraq (accessed September 30, 2013). “Anti-Afghan War Awol Soldier Joe Glenton Jailed,” BBC News, March 5, 2010, available at http://news.bbc.co.uk/1/hi/8551245.stm (accessed September 30, 2013); see also Joe Glenton, “Why I Refused to Return to Fight in Afghanistan’s Brutal Occupation,” The Guardian, April 25, 2012, http://www.guardian .co.uk/commentisfree/2012/apr/25/why-i-refused-to-fight-afghanistan -occupation (accessed April 2, 2013). War Resisters’ International (July 5, 2011), “Britain: Conscientious Objector Michael Lyons Sentences to 7 months’ Detention,” War Resisters’ International: London, available at http://wri-irg.org/node/13261 (accessed September 30, 2013). War Resisters’ International (April 17, 2006), “Britain: Conscientious Objector Sentenced to Eight Months in Prison,” War Resisters’ International: London, available at http://www.wri-irg.org/news/alerts/msg00063.html (accessed September 30, 2013). Stolwijk “The Right to Conscientious Objection in Europe”; War Resisters’ International (January 22, 2009), 7; see also the Office of the United Nations High Commissioner for Human Rights, Report no. E/CN.4/2006/51, February 27, 2006, Para. 31.

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74. Horeman and Stolwijk, “Refusing to Bear Arms”; see also Stolwijk, “The Right to Conscientious Objection in Europe.” 75. Eide and Mubanga-Chipoya, “Conscientious Objection to Military Service,” Para. 34, 4. 76. Hammer, The International Human Right, 211. 77. Gillette v. United States, Paras. 439–440. 78. Ibid., Paras. 439, 448–49. 79. Ibid., Paras. 459–460. 80. Ibid., Para. 455–456. 81. J. W. Chambers, “Conscientious Objectors and the American State from Colonial Times to the Present,” in The New Conscientious Objection: From Sacred to Secular Resistance, ed. C. C. Moskos and J. W. Chambers (Oxford: Oxford University Press, 1993), 36. 82. Brock, Twentieth-Century Pacifism , 159–160. 83. Conscientious objector discharge statistic between August 1, 1990 and July 31, 1991, provided by the Office of the Assistant Secretary of Defense (Force Management and Personnel), September 19, 1991, cited in Jr. R. L. Larsen and T. G. Hess, “Conscientious Objection in an All-Volunteer Military,” St. John Review 66 (1992): 701–702. 84. Capizzi, “Selective Conscientious Objection in the United States,” 360–361; see also Hammer, The International Human Right, 215. 85. Hauptmann v. Wehrdisziplinaranwalt. 86. Conscientious Objector v. Wehrdisziplinaranwalt, Ruling of the 1st Military Service Division (Wehrdienstsenat) of the Federal Administrative Court (Bundesverwaltungsgericht), BverwG 1 WDB 1.70, of September 30, 1970, cited in Hauptmann v. Wehrdisziplinaranwalt, 17. 87. Hauptmann v. Wehrdisziplinaranwalt, 3, 23, 81. 88. Ibid., 81. 89. GG means Grundgesetz (German Basic Law—Constitution). 90. Hauptmann v. Wehrdisziplinaranwalt, 83. 91. C. Cohen, “Conscientious Objection,” Ethics 78 (1968): 278. 92. “Detroit Bishop Asks for Conscientious Objectors,” Los Angeles Times, November 12, 1990, 13, available at http://articles.latimes.com/1990–11–12/news/ mn-3285_1_bishops-conscientious-objectors (accessed September 30, 2013); see also Larsen and Hess, “Conscientious Objection,” 702; The Catholic Bishops of the United States, “Declaration on Conscientious Objection and Selective Conscientious Objection,” October 21, 1971, United States Catholic Conference, Washington, DC, cited in W. J. Wagner, “The Right to Accommodation: Should it be Legislatively Recognized?” in Selective Conscientious Objection Accommodating Conscience and Security, ed. Jr. M. F. Noone (Boulder, San Francisco and London: Westview, 1989), 25; Fogarty, “The Right Not to Kill,” 655–686; K. Greenawalt, “Accommodation to Selective Conscientious Objection: How and Why,” in Selective Conscientious Objection Accommodating Conscience and Security, ed. Jr. M. F. Noone (Boulder, San Francisco and London: Westview, 1989), 8.

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93. See, for example, Gillette v. United States ; Shein and others v. Minister of Defence ; United States v. Cook ; Negre v. Larsen. 94. Major, “Conscientious Objection and International Law: A Human Right?” 355.

II Conscientious Objection to Military Service as a Human Right 1. See the statement of Service Civil International, UN Doc. E/CN.4/NGO/1 Add. 1 (1950). 2 . See, for example, the Commission on Human Rights (CHR), Resolution no. 1987/46, March 10, 1987; Council of Europe, Parliamentary Assembly, Resolutions 337 (1967), January 26, 1967 and Recommendations nos. 816 (1977), October 7, 1977 and 1742 (2006), April 10–13, 2006. 3. For the NGO studies see, for example, International Peace Bureau (March 8, 1971), “The Role of Youth in the Promotion and Protection of Human Rights, including the Question of Conscientious Objection to Military Service,” E/CN.4/1989/71.2; R. Brett, “International Standards on Conscientious Objection to Military Service” (Quaker United Nations Office: Geneva and New York, 2008). 4. Charter of Fundamental Rights of the European Union, adopted on December 7, 2000, 2000/C 364/01, OJ C 83 of March 30, 2010 and Ibero-American Convention on Young People’s Rights, adopted on October 10/11, 2005, entered into force March 1, 2008. 5. Freedom of thought, conscience and religion is recognized in the following human rights documents: Article 18 of the Universal Declaration of Human Rights (UDHR) (adopted on December 10, 1948, UNGA. Res.172 A (III)); Article 18 of the International Covenant on Civil and Political Rights (ICCPR) (adopted on December 16, 1966, entered into force on March 23, 1976, 999 UNTS 171); Article 9 of the European Convention on Human Rights (ECHR) (adopted on November 4, 1950, entried into force on September 3, 1953, ETS. 5); Article 3 of the American Declaration of the Rights and Duties of Man (adopted on May 2, 1948, Organization of American States, Res. XXX, OEA/Ser.L.V/II.82 doc.6 rev.1); Article 12 of the American Convention on Human Rights (AmrCHR) (adopted on November 22, 1969, entered into force on July 18, 1978, 1144 UNTS 123); Article 8 of the African Charter on Human and Peoples’ Rights (AfrCHR) (adopted on June 27, 1981, entered into force on October 21, 1986, 1520 UNTS 217). 6. Article 18 of the UDHR; Article 18 of the ICCPR; Article 9 of the ECHR; Article 12 of the AmrCHR. 7. For further information on the importance of travaux préparatoires see J. Pratter, “À la Recherche des Travaux Préparatoires: An Approach to Researching the Drafting History of International Agreements” (New York: Hauser Global Law School Program, 2005), available at http://www.nyulawglobal.org/Globalex /Travaux_Preparatoires.htm#_Edn6 (accessed September 30, 2013); see also

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I. M. Sinclair, The Vienna Convention on the Law of Treaties (Manchester: Manchester University Press, 1984), 116. 8. The UN Commission on Human Rights, Human Rights Council, the Committee of Ministers of the Council of Europe, the European Committee of Social Rights, the EU Parliament, the Inter-American Commision of Human Rights, and the Inter-American Court of Human Rights.

4

International Level: The United Nations Human Rights System

1. President Franklin D. Roosevelt, US Senate Doc. no. 188, 77th Congress, 2nd Session, 86–87. 2 . J. Morsink, The Universal Declaration of Human Rights—Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), 1. 3. Point six of the Atlantic Charter states “after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want.” 4. The Declaration by the United Nations, 204 L.N.T.S. no. 4817, 382 (1941– 43). For further information on the declaration see M. D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), 173–174 and B. G. Tahzib, Freedom of Religion or Belief Ensuring Effective International Legal Protection (The Hague/Boston/London: Martinus Nijhoff, 1996), 64–65. 5. For further information see Evans, Religious Liberty, 173–174; see also Tahzib, Freedom of Religion, 64–66. 6. Tahzib, Freedom of Religion, 67; M. D. Evans, “The Evolution of Religious Freedom in International Law: Present State and Perspectives,” in ed. J.-F. Flauss, International Protection of Religious Freedom (Bruxelles: Bruylant, 2002), 17–34. 7. Article 1(3) provides that one of the purposes of the UN is “[t]o achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” 8. In February 1943, the American Institute of Law and in February 1945, the American Jewish Committee produced their own versions of an International Bill of Rights. In addition to domestic pressure in the United States, 21 American countries at the Inter-American Conference on War and Peace, held in Mexico City in February and March 1945, declared that they wanted to see a bill of human rights as part of the UN Charter (For further information see Morsink, The Universal Declaration of Human Rights, 1–2).

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9. Under Article 68 of the Charter of the United Nations, the Economic and Social Council was authorized to establish “Commissions in economic and social fields and for the promotion of human rights.” 10. Adopted and then proclaimed by a vote of 48 in favor, zero against, with eight abstentions (all Soviet Bloc states [i.e., Byelorussia, Czechoslovakia, Poland, Ukraine, USSR] and Yugoslavia, South Africa and Saudi Arabia) (GA Resolution no. 217 (III) of December 10, 1948); see also the General Assembly Official Records (GAOR), 3rd Session, 1948, Part I, 933. 11. M. Scheinin, “Article 18,” in The Universal Declaration of Human Rights: A Common Standard of Achievement, ed. G. Alfredson and A. Eide (The Hague: Martinus Nijhoff, 1999), 379; see also A. Krishnaswami, 1960, “Study of Discrimination in the Matter of Religious Rights and Practices,” UN Doc. E /CN.4/Sub. 2/200/Rev.1, UN Publication: New York and Geneva, 4–12; K. J. Partsch, “Freedom of Conscience and Expression, and Political Freedoms,” in The International Bill of Rights, ed. L. Henkin (New York: Columbia University Press, 1981), 209; Evans, Religious Liberty, 183, 192. 12. K. Boyle, “Freedom of Conscience, Pluralism and Tolerance: Freedom of Conscience in International Law,” in Freedom of Conscience, Council of Europe (Strasbourg: Council of Europe, 1993), 39; Boyle, K., “Freedom of Religion in International Law,” in Religion, Human Rights and International Law, ed. J. Rehman and S. C. Breau (The Hague: Martinus Nijhoff, 2007), 34. 13. Evans, Religious Liberty, 183, 192. 14. For further information on the travaux préparatoires of Article 18 of the UDHR see the United Nations, “The Universal Declaration of Human Rights- An Historical Record of the Drafting Process,” available at http://www .un.org/depts/dhl/udhr/docs_1947_1st_draftcom.shtml (accessed September 30, 2013); L. M. Hammer, The International Human Right to Freedom of Conscience: Some Suggestions for Its Development and Application (Dartmouth: Ashgate, 2001), 31–37; Evans, Religious Liberty, 183–193; Scheinin, “Article 18,” 380–382. 15. One calculation is that there were 37 states with Christian traditions, 11 Islamic, six Marxists, and four Buddhist, see P. D. L. Chapelle, La Déclaration Universelle des Droits de l’Homme et le Catholicisme, coll. Bibliothèque Constitutionnelle et de Science Politique, vol. 29 (Paris: Librairie Général de Droit et le Jurisprudence, 1967), cited in Morsink, The Universal Declaration of Human Rights, 21. 16. Article 14, E/CN.4/AC.1/3/Add.1 (1947), 100. 17. For information about the influence of the speech see A. de Zayas and M. Bassiouni, Protection of Human Rights in the Administration of Justice: A Compendium of United Nations Norms and Standards (New York: Transnational, 1994); see also A. Samnoy, The Universal Declaration of Human Rights: Human Rights as International Consensus (Norway: Berger Print, 1993). 18. For further information about the speech see Hammer, The International Human Right, 32.

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19. Evans, Religious Liberty, 183. 20. E/CN.4/21, Paras. 13–17; Annex F, Article 20; E/CN.4/AC.1/4/Annex 1 (1947). 21. For further information see Evans, Religious Liberty, 184. 22 . Report of the CHR, 2nd Session, E/600, Annex A. 23. Evans, Religious Liberty, 185. 24. Hammer, The International Human Right, 32–33. 25. Ibid. 26. E/CN.4/21 Annex D (1947). 27. E/CN.4/21 Annex F (1947). 28. E/CN.4/37 (1947). 29. E/CN.V113; E/CN.VSR.62; E/CN.4/SR.60; E/CU.U/SR.60. 30. It was approved by the CHR by 11 votes to none, with four abstentions (E/ CN.4/SR.62, 13). 31. E/CN.4/85 and E/CN.4/SR.60. 32 . A/C.3/SR.127–128, 391–395. 33. A/C.3/SR.128, 407. 34. It was rejected by 22 votes to 12, with eight abstentions. 35. A/C.3/SR.127–128, 399. 36. Tahzib, Freedom of Religion, 70–81; Hammer, The International Human Right, 35–36. 37. Adopted by 11 votes to none, with four abstentions (E/CN.4/SR.62). 38. Adopted by 12 votes to none, with four abstentions (E/800—Report of the 3rd Session of the CHR). 39. Adopted by 48 votes in favor, with eight abstentions (GA, Resolution no. 217A (III), December 10 ,1948; see also GAOR, 3rd Session, 1948, Part I, 933). 40. Tahzib, Freedom of Religion, 72–73; P. H. Halpern, “Preliminary Report of the Proposed Study on Discrimination in the Matter of Religious Rights and Practices” (hereafter “1954 Halpern Report”), UN Doc. E/CN.4/Sub. 2/162 (New York and Geneva: UN Publication, 1954), Para. 11. 41. S. Liskofsky, “The UN Declaration on the Elimination of Religious Intolerance and Discrimination: Historical and Legal Perspectives,” in Religion and the State: Essays in Honour of Leo Pfeffer, ed. Jr. J. E. Wood (Waco, Texas: Baylor University Press, 1985), 440, 456. 42 . Tahzib, Freedom of Religion, 73. 43. R. Reilly, “Conscience, Citizenship, and Global Responsibilities,” BuddhistChristian Studies 23 (2003): 117–131; Partsch, “Freedom of Conscience,” 213. 44. A/C.3/SR.127–128, 399. 45. Boyle, “Freedom of Conscience,” 42; see also Partsch, “Freedom of Conscience,” 209.209. 46. Ibid., Boyle, “Freedom of Conscience,” 42. 47. Article 29 states: “1. Everyone has duties to the community in which alone the free and full development of his personality is possible; 2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as

204

48.

49.

50. 51.

52 . 53.

54. 55. 56. 57.

58. 59.

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are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society; 3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.” Article 30 states: “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” See the report which was prepared in 1983 by E.-Irene A. Daes. However, this report was published by the Centre for Human Rights in 1990, entitled “Freedom of the Individual under Law: An Analysis of Article 29 of the Universal Declaration of Human Rights,” UN Doc. E/CN.4/Sub. 2/432 /Rev.2, United Nations Publication: New York, 129. In addition, “total supervision” of rights and freedoms means that “an abuse of a right or freedom should be subject to judicial control and considered as a basic limitation of human rights and freedoms” (Daes, “Freedom of the Individual,” 129). “Their” refers to “rights and freedoms” in this context. Daes, “Freedom of the Individual,” 39. The meaning of the term “community” was explained by Daes as follows: “The meaning of the term ‘community’ for the purpose of this study is: A great number of United Nations having common purposes and noble goals, such as to save succeeding generations from the scourge of war and to promote social progress and better standards of life in large freedom, such as the ‘United Nations,’ which will be also cited as the ‘World Community’” (Ibid., 39). Ibid., 52. Comments by Governments relating to the individual’s duties to the community during the travaux préparatoires of Article 29, including Ecuador (August 28, 1975) and the German Democratic Republic (October 13, 1976), cited in Daes, “Freedom of the Individual,” 22–23; see also E/CN.4/1998/173 (1998 letter of Singapore to the Chairman of the CHR, signed by ten states expressing their opposition to the right to conscientious objection). Austria (April 2, 1976), cited in Daes, “Freedom of the Individual,” 21. C. D. de Jong, The Freedom of Thought, Conscience and Religion or Belief in the United Nations (1946–1992) (Antwerpen-Groningen-Oxford: Intersentia, 2000), 178. Daes, “Freedom of the Individual,” 39. de Jong, The Freedom of Thought, 178. See section on “Selective Conscientious Objectors” in chapter 3. de Jong, The Freedom of Thought, 178–179; A. Eide and C. Mubanga-Chipoya, 1983, “Conscientious Objection to Military Service,” UN Doc. E/CN.4 /Sub.2/1983/30, UN Publication: New York and Geneva, Paras. 28, 29, and 46. Boyle, “Freedom of Conscience,” 38–39. Partsch, “Freedom of Conscience,” 214; see also H. Kanger, Human Rights in the UN Declaration (Uppsala: Almqvist/Wiksell International, 1984), 119.

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60. GA Resolution no. 217E(III) of December 10, 1948, Para. 1, GAOR, 3rd Session, pt. 1, 183d plenary meeting, 79, A/810. For further information see Tahzib, Freedom of Religion, 81. 61. One covenant was to be dedicated to civil and political rights (International Covenant on Civil and Political Rights), while the other was to be dedicated to economic, social, and cultural rights (International Covenant on Economic, Social and Cultural Rights, 993 UNTS 3, adopted on December 16, 1966, entered into force on January 3, 1976). In 1954, the CHR succeeded in finalizing the preliminary text of both draft Covenants and sent the draft covenants to the General Assembly. Each article of both Covenants came under consideration between 1954 and 1966 at each session of the General Assembly (GA Resolution no. 543 (VI), February 5, 1952, Para. 1, GAOR, 6th Session, Supp. no. 20, 375th plenary meeting, 36, A/2119 (1952) and UN ESCOR, 18th Session, Supp. no. 7, E/2573, E/CN.4/705 (1954). For further information see Tahzib, Freedom of Religion, 81). 62 . The ICCPR, by 106 votes to none with no abstentions; and the Optional Protocol to the ICCPR, by 66 votes in favor, two against, and 38 abstentions (For further information see Tahzib, Freedom of Religion, 81). 63. For further information on the travaux préparatoires of the ICCPR, see M. J. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights (Dordrecht, Boston: Martinus Nijhoff—Kluwer Academic, 1987), 351–371. For an additional source, see Hammer, The International Human Right, 38–50 and Evans, Religious Liberty, 194–201. 64. Bossuyt, Guide to the “Travaux Préparatoires,” 353. 65. Ibid., 355–359; Hammer, The International Human Right, 39–42. 66. E/CN.4/SR.116, 3–4. 67. A/C.3/SR.1021–1027. 68. A/C.3/SR.1021. 69. A/C.3/SR.1026. 70. A/C.3/SR.1021. 71. A/C.3/SR.1022. 72 . A/C.3/SR.1027, Para. 34. 73. A/C.3/SR.1025. 74. A/4625; see also A/C.3/SR.1027, Para. 34. 75. These discussion were generally instigated by Islamic countries in the fifth (1950), ninth (1954), and fifteenth (1960) sessions of the Third Committee. For further information about these debates see A/C.3/SR.1021, Para. 15; A/C.3/SR.1022, Paras. 18 and 27, A/C.3/SR.571, Paras. 15 and 45, GAOR C.3, 15th Session, Para. 50, A/C.3/SR.289, Paras. 40–47; A/C.3/SR.1026, Paras. 6, 9, and 26; A/C.3/SR.1027, Paras. 2, 19, 23, and 36. 76. Tahzib, Freedom of Religion, 87. 77. E/CN.4/SR.116, 5, 9, and 13; E/CN.4/SR.117, 6; E/CN.4/SR.319, 8. 78. See the report of the Working Group on Arbitrary Detention no. E /CN.4/2001/14, Recommendation no. 2, December 20, 2000, Para. 93.

206 79. 80. 81. 82 . 83.

84. 85.

86. 87. 88.

89. 90. 91.

92 .

93. 94. 95. 96. 97.

98. 99.

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Evans, Religious Liberty, 207. E/CN.4/SR. 142, 8, Para. 30. E/CN.4/353/Add. 3 (1950), 7. E/CN.4/NGO/1/Add.1 (1950). For further information see R. Brett, “Persistent Objectors at the United Nations,” The Friends Quarterly 35 (2007): 301–309; see also R. Brett and L. Townhead, “Conscientious Objection to Military Service,” in Strategic Visions for Human Rights- Essays in Honour of Professor Kevin Boyle, G. Gilbert, F. Hampson, and C. Sandoval (London and New York: Routledge, 2010), 98. 6 UN ESCOR (161st mtg.), E/CN.4/SR.161 (1950), 11–12. Ibid., 11–12. For further information see also M. Lippman, “The Recognition of Conscientious Objection to Military Service as an International Human Right,” California Western International Law Journal 21 (1990/1991): 44–46 and H. Takemura, International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders (Heidelberg: Springer, 2008), 28–29. CHR, 5th Session (1949); see also E/CN.4/SR.104, 6 and 7; E/CN.4/SR.199, Para. 99. E/CN.4/SR.161. Daes, “Freedom of the Individual,” 22–23; C. C. Moskos and J. W. Chambers, “Introduction,” in The New Conscientious Objection: From Sacred to Secular Resistance, ed. C. C. Moskos and J. W. Chambers (Oxford: Oxford University Press, 1993), 158–166. For instance, during the Cold War, the Constitution of the German Democratic Republic set out the basic duties of citizens such as protection of the socialist homeland, including defence of the German Democratic Republic. A/4625, Para. 57; see also A/C.3/SR.1027, Para. 36. Tahzib, Freedom of Religion, 83–84. Article 26(3) of the UDHR states that “Parents have a prior right to choose the kind of education that shall be given to their children.” For further information on Article 18 of the ICCPR see Partsch, “Freedom of Conscience,” 210. See HRC, General Comment no. 22, “The Right to Freedom of Thought, Conscience and Religion,” UN Doc. CCPR/C/21/Rev.1/Add.4, July 30, 1993, Para. 2. Boyle, “Freedom of Conscience,” 44–45. Partsch, “Freedom of Conscience,” 210. Boyle, “Freedom of Conscience,” 46. Partsch, “Freedom of Conscience,” 210–214. For further information on the travaux préparatoires of the ICCPR, Article 8(3)(c)(ii), see Bossuyt, Guide to the “Travaux Préparatoires,” 161–186; see also Takemura, International Human Right, 22–29. CHR, 3rd Session (1948), E/800. E/CN.4/170/Add. 3.

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100. E/CN.4/202. 101. E/CN.4/202/Rev. 1. 102 . In the first part of the proposal by the Drafting Committee the phrase “any service of a military character” was adopted by 14 votes to none, with two abstentions (E/CN.4/SR.104, 9). In the second part of the proposal the phrase “in the case of conscientious objectors,” was adopted by seven votes to four, with five abstentions (E/CN.4/SR.104, 9). In the third paragraph of the proposal the phrase “exacted in virtue of laws requiring compulsory national service” was adopted by ten votes to none, with six abstentions (E/CN.4 /SR.104, 9). 103. Adopted by eight votes to two, with six abstentions (E/CN.4/SR.104, 8). 104. E/CN.4/SR.104, 6. 105. Ibid., 7. 106. E/CN.4/365, 29. 107. de Jong, The Freedom of Thought, 177. 108. E/CN.4/SR.104, 7. 109. Ibid. 110. E/CN.4/365, 29. 111. E/CN.4/391, 1. 112 . E/CN.4/SR.149, 3, Para. 1. 113. E/CN.4/SR.154, 3, Paras. 4–6 and 8. 114. E/CN.4/L.158. 115. E/CN.4/L.158/Rev. 1. 116. E/CN.4/SR.313, 9. 117. E/CN.4/SR. 313, 10. 118. Ibid., 11. 119. Adopted by 11 votes to three, with four abstentions, Ibid., 12. 120. E/CN.4/SR.94, 5, 9, 10, 12; E/CN.4/SR. 103, 9. 121. E/CN.4/SR. 94, 10. 122 . Ibid. 123. E/CN.4/SR. 104, 5. 124. Ibid. 125. E/CN.4/SR. 94, 12. 126. Takemura, International Human Right, 27. 127. E/CN.4/SR. 94, 8. 128. A/4045, Para. 26; A/C.3/L.682. 129. A/4045, Para. 30 (d). 130. Adopted by 70 votes to none, with three abstentions (A/4045, Para. 30 (d); A/C.3/SR.860, Para. 40). 131. D. Shelton, “Conscientious Objection to Religious Groups,” in International Protection of Religious Freedom, ed. J.-F. Flauss (Bruxelles: Bruylant, 2002), 168– 169; Partsch, “Freedom of Conscience,” 212; Tahzib, Freedom of Religion, 90. 132 . E/CN.4/SR.142, 8, Para. 30. 133. Takemura, International Human Right, 29.

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134. The right to conscientious objection is recognised by over 35 percent of 168 countries having armed forces. However, the ratio is significantly higher in Europe (For further information regarding most of these countries see European Bureau for Conscientious Objection (2011), “Report to the Council of Europe,” 62, 63; D. Brett, “Military Recruitment and Conscientious Objection: A Thematic Global Survey” (Leuven and Geneva: Conscience and Peace Tax Intenational, 2006); see also B. Horeman and M. Stolwijk (1998, updated in 2005), “Refusing to Bear Arms: A Worldwide Survey of Conscription and Conscientious Objection to Military Service,” War Resisters’ International: London, available at www.wri-irg.org/co/rtba/index. html (accessed September 30, 2013) and M. Stolwijk (2005, updated in 2008), “The Right to Conscientious Objection in Europe: A Review of the Current Situation,” Quaker Council for European Affairs: Brussels, available at http://www.qcea.org/work/human-rights/conscientious-objection/ (accessed September 30, 2013). 135. Eide and Mubanga-Chipoya, “Conscientious Objection to Military Service,” 5. 136. Tyrer v. the United Kingdom, Application no. 5856/72, 25 April 1978, Para. 31. 137. UN GA, Resolution no. 33/165, December 20, 1978. 138. Ibid., Para. 1. 139. Ibid., Para. 2 [footnote ommitted]. 140. UN GA, Resolution no. 35/206B, December 16, 1980; Resolution no. 39/72A, December 13, 1984. 141. Resolution no. 35/206B, Para. 6. 142 . For further information on the CHR resolutions see W. D. Angel, The International Law of Youth Rights: Source Documents and Commentary (Dordrecht: Martinus Nijhoff, 1995); E. N. Marcus, “Conscientious Objection as an Emerging Human Right,” Virginia Journal of International Law 38 (1997–1998): 532–534; Takemura, International Human Right , 20–66; M-F. Major, “Conscientious Objection and International Law: A Human Right?,” Case Western Reserve Journal of International Law 24 (1992): 371–375; Lippman, “Recognition of Conscientious Objection,” 48–57. 143. For further information on the draft resolution see E/CN.4/SR.1125 and Takemura, International Human Right, 33–38. 144. E/CN.4/SR.1125, 14 and 15. 145. E/CN.4/SR.1129, 58–59; E/CN.4/SR.1125, 16. 146. This resolution was passed by 18 votes to three, with seven abstentions. 147. CHR, Resolution no. 38 (XXXVI), March 12, 1980, Para. 2. This resolution was adopted by 23 votes to two, with five abstentions. 148. CHR, Resolution no. 40 (XXXVI), March 12, 1981. The Sub-Commission appointed Asbjorn Eide and Mubango-Chpoya, who were requested to “make an analysis of the various dimensions of conscientious objection to

Notes

149. 150. 151. 152 . 153. 154. 155. 156. 157. 158.

159.

160. 161. 162 . 163. 164. 165. 166. 167. 168.

169. 170. 171. 172 . 173. 174. 175. 176. 177. 178. 179.

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military service and its interrelationships with the promotion and protection of human rights, and to present a concise report [to the Sub-Commission] together with their conclusions and recommendations.” Eide and Mubanga-Chipoya, “Conscientious Objection to Military Service,” Para. 153/1-a. Ibid., Para. 153/1-a to g. Ibid., Para. 107. Ibid., Para. 153/3, cited in E/CN.4/Sub.2/1983/30. CHR, Resolution no. 1987/46, March 10, 1987, Para. 1; see also de Jong, The Freedom of Thought, 170. CHR, Resolution no. 1987/46, Para. 2. Ibid., the last sentence of the preambular paragraph. E/CN.4/1987/SR.54/Add. 1. Takemura, International Human Right, 49. UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Resolution no. 1987/18, March 10, 1987, Para. 5; see also E/CN.4/1988/37 and E/CN.4/Sub.2/1987/42. E/CN.4/1989/30; E/CN.4/1989/69; E/CN.4/1989/NGO/18; E/CN.4/1989 /NGO/50; E/CN.4/1989/NGO/71; E/CN.4/1989/NGO/72; E/CN.4/1989 /NGO/76. CHR, Resolution no. 1989/59, March 8, 1989, Para. 1. Major, “Conscientious Objection and International Law,” 375. CHR, Resolution no. 1993/84, March 10, 1993, the last sentence of preambular paragraph. Ibid., Para. 6. Brett, “International Standards on Conscientious Objection,” 6. CHR, Resolution no. 1995/83, March 8, 1995, Para. 1. Ibid., the eleventh sentence of preambular paragraph. Ibid., the twelveth sentence of preambular paragraph. Ibid., Para. 4. For further discussion on this resolution see also Takemura, International Human Right, 61–62; Hammer, The International Human Right, 201. E/CN.4/1998/173. CHR, Resolution no. 1998/77, April 22, 1998, Para. 1. Ibid., the fourth sentence of preambular paragraph. CHR, Resolution no. 1998/77, Para. 2. Ibid., the fifth sentence of preambular paragraph. Ibid., Paras. 3, 4 and 5. Ibid., Para. 8. Ibid., Para. 6. Ibid., Para. 7. CHR, 54th Session, Summary Record of the 58th Meeting (April 27, 1998), E/CN.4/1998/SR.58, 12, Para. 57. Ibid., 12, Para. 59.

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180. CHR, Resolution no. 2000/34, April 20, 2000, and CHR, Resolution no. 2002/45, April 23, 2002. 181. Office of the United Nations High Commissioner for Human Rights (OHCHR), Report no. E/CN.4/2002/WP.2, March 14, 2002 and Report no. E/CN.4/2004/55, February 16, 2004. 182 . E/CN.4/2004/L/54, April 14, 2004; see also CHR, Summary Record of the 55th Meeting, December 9, 2005, E/CN.4/2004/SR.55, 10, Para. 53. 183. CHR, Resolution no. 2004/35, April 19, 2004, Para. 4. 184. OHCHR, Report no. E/CN.4/2006/51, February 27, 2006. The other previous reports were submitted to the CHR in 2002 (Report no. E/CN.4/2002 /WP.2) and 2004 (Report no. E/CN.4/2004/55). 185. OHCHR, Report no. E/CN.4/2006/51, 5, 9, 10 and 17; the 2002 and 2004 reports of the OHCHR did not specifically address the right to conscientious objection for professional soldiers. However, in 2006, it was clearly emphasized. 186. Ibid., 8 and 17. 187. Ibid., 13 and 17. 188. UN GA, Resolution no. 60/251, March 15, 2006. 189. Following this significant change, the Working Group on the Universal Periodic Review was established in accordance with Human Rights Council, Resolution no. 5/1, June 18, 2007. 190. Human Rights Council, Universal Periodic Review: Report of the Working Group on the Universal Periodic Review, Colombia, A/HRC/10/82, January 9, 2009. 191. Human Rights Council, Universal Periodic Review: Report of the Working Group on the Universal Periodic Review, Israel, A/HRC/10/76, January 8, 2009. 192 . Human Rights Council, Universal Periodic Review: Report of the Working Group on the Universal Periodic Review, Turkmenistan, A/HRC/10/79, January 6, 2009. 193. Human Rights Council, Universal Periodic Review: Report of the Working Group on the Universal Periodic Review, Turkey, stakeholders’ submissions, A/HRC/WG.6/8/TUR/3, February 17, 2010. 194. Article 34 of Resolution no. 5/1. 195. Articles 33 and 35 of Resolution no. 5/1. 196. Article 37 of Resolution no. 5/1. 197. Article 38 of Resolution no. 5/1. 198. For further information on the Human Rights Committee (HRC) see P. M. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2005), 10–15. 199. HRC, General Comment no. 22, “The Right to Freedom of Thought, Conscience and Religion,” UN Doc. CCPR/C/21/Rev.1/Add.4, July 30, 1993. 200. CCPR/C/SR.1226 and CCPR/C/SR.1237. For further information see also Takemura, International Human Right, 58–59 and Brett and Townhead, “Conscientious Objection to Military Service,” 100. 201. HRC, General Comment no. 22, Para. 11.

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202 . Ibid., Para. 2. 203. Concluding Observations of the Human Rights Committee: Ukraine (UN Doc. CCPR/C/UKR/6 of November 28, 2006), Para. 12; CHR, Resolution no. 1998/77; Council of Europe, Parliamentary Assembly, Resolution no. 337 (1967); Council of Europe, Committee of Ministers, Recommendation no. R (87)8, April 9, 1987, simply refers to “compelling reasons of conscience.” See also R. Brett, “International Standards on Conscientious Objection to Military and Alternative Service,” in Conscientious Objection: Resisting Militarized Society, ed. Ö. H. Çınar and C. Üsterci (London and New York: Zed Books, 2009), 199–200. 204. CCPR/C/SR.1237, Para. 20. 205. Ibid., Para. 23. 206. Ibid., Paras. 15, 20 and HRC, General Comment no. 22, Para. 8. For further information see also Brems, E., A Commentary on the United Nations Convention on the Rights of the Child: Article 14: The Rights to Freedom of Thought, Conscience and Religion (The Hague: Martinus Nijhoff, 2006), 14; Hammer, The International Human Right, 196; Takemura, International Human Right, 59–60. 207. Hammer, The International Human Right, 210. 208. CCPR/C/SR.1247, Para. 74. 209. See Amnesty International et al. (July 15, 2010), “Third Party Intervention to the Grand Chamber of the European Court of Human Rights in the case of Bayatyan v. Armenia ,” Application no. 23459/03, Annex 5, 21–29; Brett and Townhead, “Conscientious Objection to Military Service,” 101; see also the concluding observations at the official website of the Office of the United Nations High Commissioner for Human Rights, Human Rights Committee, available at http://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=8&DocTypeID=5 (accessed September 30, 2013). 210. See, for example, Concluding observations of the Human Rights Committee: The Republic of Korea (UN Doc. CCPR/C/KOR/CO/3 of November 28, 2006), Para. 17; Concluding observations of the Human Rights Committee: Tajikistan (UN Doc. CCPR/CO/84/TJK of July 18, 2005), Para. 20; Concluding observations of the Human Rights Committee: Finland (UN Doc. CCPR/CO/82/FIN of December 2, 2004), Para. 14; Concluding observations of the Human Rights Committee: Serbia and Montenegro (UN Doc. CCPR/CO/81/SEMO of August 12, 2004), Para. 21; Concluding observations of the Human Rights Committee: Lithuania (UN Doc. CCPR /CO/80/LTU of May 4, 2004), Para. 17; Concluding observations of the Human Rights Committee: Mexico (UN Doc. CCPR/C/79/Add.109 of July 27, 1999), Para. 20; see also the report of the Human Rights Committee, Vietnam, General Assembly Official Records (GAOR), Fifty-seventh Session, Supplement no. 40 (A/57/40), vol. I, Para. 82; and the report of the Human Rights Committee, Venezuela, GAOR., Fifty-sixth Session, Supplement no. 40 (A/56/40), vol. I, Para. 77.

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211. See, for example, Concluding observations of the Human Rights Committee: Tajikistan (UN Doc. CCPR/CO/84/TJK of July 18, 2005), Para. 20. 212 . Concluding observations of the Human Rights Committee: Ukraine (UN Doc. CCPR/C/UKR/6 of November 28, 2006), Para. 12. 213. See, for example, Concluding observations of the Human Rights Committee: Russian Federation (UN Doc. CCPR/C/RUS/CO/6 of November 24, 2009), Para. 23; Concluding observations of the Human Rights Committee: Greece (UN Doc. CCPR/CO/83/GRC of April 25, 2005), Para. 15; Report of the Human Rights Committee, Israel, GAOR, Fifty-eighth Session, Supplement no. 40 (A/58/40), vol. I, Para. 85; Concluding observations of the Human Rights Committee: Paraguay (UN Doc. CCPR/C/PRY/CO/2 of April 24, 2006), Para. 18; Report of the Human Rights Committee, Venezuela, GAOR, Forty-eighth Session, Supplement no. 40 (A/48/40), vol. I, Para. 291; Report of the Human Rights Committee, Austria, Ecuador, and Belarus, GAOR, Forty-seventh Session, Supplement no. 40 (A/47/40), Paras. 110, 247 and 536, respectively; Report of the Human Rights Committee, Spain, GAOR, Forty-sixth Session, Supplement no. 40 (A/46/40), Para. 172; Report of the Human Rights Committee, Portugal and Saint Vincent and the Grenadines, GAOR, Forty-fifth Session, Supplement no. 40 (A/45/40), vol. I, Paras. 156 and 251, respectively; Report of the Human Rights Committee, Norway and the Netherlands, GAOR, Forty-fourth Session, Supplement no. 40 (A/44/40), Paras. 83 and 219; Report of the Human Rights Committee, Finland and Hungary, GAOR, Forty-first Session, Supplement no. 40 (A/41/40), Paras. 210 and 398, respectively; Report of the Human Rights Committee, Iceland, Australia and Peru, GAOR, Thirty-eighth Session, Supplement no. 40 (A/38/40), Paras. 113, 150, and 269, respectively; Report of the Human Rights Committee, Norway, GAOR, Thirty-sixth Session, Supplement no. 40 (A/36/40), Para. 358; and the report of the Human Rights Committee, Canada, GAOR, Thirty-fifth Session, Supplement no. 40 (A/35/40), Para. 169; Concluding observations of the Human Rights Committee on: Latvia (UN Doc. CCPR/CO/79/LVA of November 6, 2003), Para. 15; Concluding observations of the Human Rights Committee: Lithuania (UN Doc. CCPR /CO/80/LTU of May 4, 2004), Para. 17. 214. See, for example, the report of the Human Rights Committee, Israel, GAOR, Fifty-eighth Session, Supplement no. 40 (A/58/40), vol. I, Para. 85; Concluding observations of the Human Rights Committee: Paraguay (UN Doc. CCPR/C/PRY/CO/2 of April 24, 2006), Para. 18. 215. See, for example, Concluding observations of the Human Rights Committee: Chile (UN Doc. CCPR/C/CHL/CO/5 of May 18, 2007), Para. 13; Concluding observations of the Human Rights Committee: Azerbaijan (UN Doc. CCPR/CO/73/AZE of November 12, 2001), Para. 21; Concluding observations of the Human Rights Committee: Dominican Republic (UN Doc. CCPR/CO/71/DOM of April 26, 2001), Para. 21; Concluding observations of the Human Rights Committee: Venezuela (UN Doc. CCPR/CO/71 /VEN of April 26, 2001), Para. 26; Concluding observations of the Human

Notes

216.

217.

218. 219.

220.

221.

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Rights Committee: Syrian Arab Republic (UN Doc. CCPR/CO/84/SYR of August 9, 2005), Para. 11; Concluding observations of the Human Rights Committee: Yemen (UN Doc. CCPR/CO/84/YEM of August 9, 2005), Para. 19; Concluding observations of the Human Rights Committee: Poland (UN Doc. CCPR/CO/82/POL of December 2, 2004), Para. 15. See, for example, Concluding observations of the Human Rights Committee: Finland (UN Doc. CCPR/CO/82/FIN of December 2, 2004), Para. 14; Concluding observations of the Human Rights Committee: Morocco (UN Doc. CCPR/CO/82/MAR of December 1, 2004), Para. 22; Concluding observations of the Human Rights Committee: Colombia (UN Doc . CCPR/CO/80/COL of May 26, 2004), Para. 17; Concluding observations of the Human Rights Committee: Lithuania (UN Doc. CCPR/CO/80 /LTU of May 4, 2004), Para. 17; Concluding observations of the Human Rights Committee: Russian Federation (UN Doc. CCPR/CO/79/RUS of November 6, 2003), Para. 17; Concluding observations of the Human Rights Committee: Estonia (UN Doc. CCPR/CO/77/EST of April 15, 2003), Para. 15; Concluding observations of the Human Rights Committee: Ukraine (UN Doc. CCPR/CO/73/UKR of November 12, 2001), Para. 20. For further information see Takemura, International Human Right, 74–80; see also Amnesty International et. al., “Third Party Intervention to the Grand Chamber of the European Court of Human Rights in the case of Bayatyan v. Armenia ,” 21–29; OHCHR, Reports no. E/CN.4/2004/55, 5–6; E/CN.4/2006/51, 6; E/CN.4/2002/WP.2, 3. See, for example, Concluding observations of the Human Rights Committee: Slovakia (UN Doc. CCPR/C/79/Add.79 of August 4, 1997), Para. 12. See, for example, Concluding observations of the Human Rights Committee: Azerbaijan (UN Doc. CCPR/CO/73/AZE of November 12, 2001), Para. 21; Concluding observations of the Human Rights Committee: Kyrgyzstan (UN Doc. CCPR/CO/69/KGZ of July 24, 2000), Para. 18; Concluding observations of the Human Rights Committee: Ukraine (UN Doc. CCPR/CO/73/ UKR of November 12, 2001), Para. 20. According to Article 1 of the First Optional Protocol of the International Covenant on Civil and Political Rights, “A State party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State party of any of the rights set forth in the Covenant. No communication shall be received by the [Human Rights] Committee if it concerns a State party to the Covenant which is not a Party to the present Protocol.” (First Optional Protocol of the International Covenant on Civil and Political Rights, adopted and opened for signature by General Assembly Resolution no. 2200A (XXI) of December 16, 1966, entered into force on March 23, 1976). HRC, General Comment no. 33, “The Obligations of States Parties under the Optional Protocol to the International Covenant on Civil and Political Rights,” UN Doc. CCPR/C/GC/33, November 5, 2008.

214

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222 . Paavo Muhonen v. Finland , Communication no. 89/1981, April 8, 1985, UN Doc. CCPR/C/OP/2. 223. Ibid., Para. 1. 224. Ibid., Para. 2.4. 225. Ibid., Para. 3. 226. L. T. K. v. Finland , Communication no. 185/1984, July 9, 1985, UN Doc. CCPR/C/OP/2. 227. Ibid., Para. 1. 228. Ibid., Para. 2.1. 229. Ibid., Para. 1. 230. Ibid., Para. 5.2. 231. Ibid. 232 . Ibid., Para. 6. 233. Ibid. 234. Ibid., Para. 7. 235. M. Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 1st ed. (Kehl am Rhein: N.P. Engel: 1993), 154; Eide and Mubanga-Chipoya, “Conscientious Objection to Military Service,” 5; Scheinin, “Article 18,” 389. 236. Takemura, International Human Right, 68. 237. Aapo Järvinen v. Finland , Communication no. 295/1988, August 15, 1990, UN Doc. CCPR/C/39/D/295/1988. 238. Ibid., Paras. 2.1 and 2.2. 239. Ibid., Para. 6.2. 240. Ibid., Para. 6.3. 241. Ibid., Para. 6.5. 242 . Ibid., Para. 6.4. 243. Ibid., Para. 6.5. 244. Ibid., Para. 6.6. 245. Ibid., Para. 6.7. 246. Foin v. France, Communication no. 666/1995, November 9, 1999, UN Doc. CCPR/C/D/666/1995. 247. Ibid., Para. 10.3. 248. Ibid. 249. Richard Maille v. France, Communication no. 689/1996, July 31, 2000, UN Doc. CCPR/C/69/D/689/1996. 250. Marc Veiner and Paul Nicolas v. France, Communication nos. 690/1996 and 691/1996, August 1, 2000, UN Doc. CCPR/C/69/D/690/1996 and 691/1996. 251. Godefriedus Maria Brinkhof v. the Netherlands, Communication no. 402/1990, July 30, 1993, UN Doc. CCPR/C/48/D/402/1990. 252 . The HRC states that “Non-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitute a basic and general principle relating to the protection of human rights.”

Notes

253. 254. 255. 256. 257. 258. 259. 260. 261. 262 . 263. 264. 265. 266. 267. 268. 269.

270. 271. 272 . 273.

274. 275. 276. 277.

278. 279. 280.

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(HRC, General Comment no. 18, “Non-Discrimination,” UN Doc. HRI /GEN/1/Rev.1, November 10, 1989, Para. 1.) Godefriedus Maria Brinkhof v. the Netherlands, Para. 1. Ibid., Para. 2.1. Ibid., Para. 2.2. Ibid., Para. 3.3. Ibid., Para. 3.4. Ibid., Para. 4.2. Ibid., Para. 9.3. Ibid. Ibid., Para. 9.4. Ibid., Para. 9.3. Paul Westerman v. the Netherlands, Communication no. 682/1996, December 13, 1999, UN Doc. CCPR/C/67/D/682/1996. Ibid., Para. 2.1. Ibid., Para. 2.2. Ibid. Ibid., Para. 2.4. Ibid., Para. 3.2. Paragraph 11 of the General Comment no. 22 states: “Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under Article 18.” Ibid., Para. 9.3. Ibid. Ibid., Para. 9.4. The individual opinion (dissenting) by Committee members P. Bhagwati, L. Henkin, C. Medina Quiroga, F. Pocar, M. Scheinin, and H. Solari Yrigoyen in the case of Paul Westerman v. the Netherlands. Paul Westerman v. the Netherlands, Para. 9.5. For further information on the Paul Westerman case see Brems, A Commentary on the United Nations Convention on the Rights of the Child , 15–17. Paul Westerman v. the Netherlands, Para. 9.3. Yeo-Bum Yoon and Mr Myung-Jin Choi v. the Republic of Korea , Communication nos. 1321/2004 and 1322/2004, November 3, 2006, UN Doc. CCPR/C/88/D/1321–1322/2004; Eu-min Jung, Tae-Yang Oh, ChangGeun Yeom, Dong-hyuk Nah, Ho-Gun Yu, Chi-yun Lim, Choi Jin, Taehoon Lim, Sung-hwan Lim, Jae-sung Lim, and Dong-ju Goh v. the Republic of Korea , Communication Nos. 1593 to 1603/2007, March 23, 2010, UN Doc. CCPR/C/98/D/1593–1603/2007. In the Republic of Korea there is neither the recognition of the right to conscientious objection to military service nor alternative service. Yeo-Bum Yoon and Myung-Jin Choi v. the Republic of Korea , Para. 2.2. Ibid., Para. 8.2.

216 281. 282 . 283. 284. 285. 286. 287. 288. 289.

290.

291.

292 . 293. 294.

295. 296. 297. 298. 299. 300. 301. 302 . 303. 304. 305. 306.

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Ibid., Para. 7.2. Ibid., Para. 8.4. Ibid., Para. 7.4. Dissenting opinion by Committee member Mr. Hipólito Solari-Yrigoyen, Para. 8.2. Ibid., Para. 8.3. Dissenting opinion by Committee member Ms Ruth Wedgwood; see Appendix to UN Doc. CCPR/C/88/D/1321–1322/2004. Ibid. Ibid. The objections are that a) conscientious objection to military service is not included in Article 18, and b) reference is explicitly made to conscientious objection to military service in Article 8(3)(c)(ii). For further discussion see Brett and Townhead, “Conscientious Objection to Military Service,” 105. Concluding observations of the Human Rights Committee: Ukraine (UN Doc. CCPR/C/UKR/6 of November 28, 2006), Para. 12; Concluding observations of the Human Rights Committee: Chile (UN Doc. CCPR/C/CHL /CO/5 of May 18, 2007), Para. 13; HRC, General Comment no. 22, Para. 11. For further information see also Brett and Townhead, “Conscientious Objection to Military Service,” 105. Eu-min Jung, Tae-Yang Oh, Chang-Geun Yeom, Dong-hyuk Nah, Ho-Gun Yu, Chi-yun Lim, Choi Jin, Taehoon Lim, Sung-hwan Lim, Jae-sung Lim, and Dong-ju Goh v. the Republic of Korea , Para. 2.1. Ibid., Para. 1.1. Ibid., Para. 7.4. Min-Kyu Jeong et. al. v. the Republic of Korea , Communications nos. 1642 to 1741/2007, April 27, 2011, UN Doc. CCPR/C/101/D/1642–1741/2007, Para. 1.1. Ibid., Para. 2.1. Ibid., Para. 8. Ibid., Para. 7.4. See individual opinion of Mr. Yuji Iwasawa, Mr. Gerald L. Neuman, and Mr. Michael O’Flahertv (concurring), ibid., 25. Cenk Atasoy and Arda Sarkut v. Turkey, Communication nos. 1853/2008 and 1854/2008, March 29, 2012, UN Doc. CCPR/C/104/D/1853–1854/2008. Ibid., Para. 10.4. Ibid., Para. 10.5. Ibid., Appendix I, 13 [footnote omitted]. Ibid., Appendix II, 15–16. Ibid., Appendix II, 15–16 [footnote omitted]. Ibid., Appendix III, Para. 19. The Working Group was established by Resolution no. 1991/42 (March 5, 1991) of the CHR, which extended and clarified its mandate in the Resolution no. 1997/50 (April 15, 1997). After the Human Rights Council replaced the

Notes

307. 308. 309. 310. 311. 312 .

313. 314. 315. 316.

317. 318.

319.

320.

321. 322 . 323.

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CHR, the Council assumed the Working Group’s mandate in its decision 2006/102 and extended it for a further three-year period in the Resolution no. 6/4 (Human Rights Council, Resolution no. 6/4, September 28, 2007, A/HRC/6/4; see also A/HRC/6/1/Add.2). One of its mandates is “to investigate cases of deprivation of liberty imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the UDHR or in the relevant international legal instruments accepted by the States concerned” (UN Human Rights Council, Resolution no. 6/4–1(a)). The Working Group presents an annual report to the Human Rights Council on its activities, findings, conclusions, and recommendations. United Nations Working Group on Arbitrary Detention, Opinion no. 36/1999 (Turkey), December 2, 1999. Ibid., Para. 10. Ibid., Para. 8. Ibid. Ibid., Para. 9. H. Üçpınar, “Türkiye’de Vicdani Reddin Suç ve Ceza Konusu Olması ve Sonuçları,” in ed. Ö. H. Çınar and C. Üsterci Çarklardaki Kum: Vicdani RedDüşünsel Kaynaklar ve Deneyimler (İstanbul: İletişim Yay ınları, 2008), 330. Report of the Working Group on Arbitrary Detention (December 20, 2000), Recommendation no. 2, Para. 93. Ibid., Para. 94. General Comment no. 32, “Right to Equality before Courts and Tribunals and to a Fair Trial,” UN Doc. CCPR/C/GC/32, August 23, 2007, Para. 55. From 2003 onwards, the Working Group dealt with several cases of Israeli, Turkish, and Colombian conscientious objectors; see the UN Working Group on Arbitrary Detention, Opinion no. 24/2003 (Israel), November 28, 2003, Para. 31; Opinion no. 8/2008 (Colombia), May 8, 2008, Para. 24; Opinion no. 16/2008 (Turkey), May 9, 2008, Para. 44. HRC’s General Comment no. 32. Report of the Working Group on Arbitrary Detention, December 20, 2000, Para. 94; Opinion no. 24/2003 (Israel), Para. 27; Opinion No. 16/2008, Para. 36. The Special Rapporteur has focused on the right to conscientious objection under the right to manifest one’s religion or belief (see framework for communications, available at http://www.ohchr.org/EN/Issues/FreedomReligion /Pages/IstandardsI3k.aspx (accessed September 30, 2013)). A/56/253, Paras. 63 and 68, and annex, Paras. 4 and 5; E/CN.4/2003/66, Paras. 65–68; see also A/55/280/Add.1 and A/HRC/10/8/Add.4, Paras. 50, 51, 68. A/55/280/Add.1, Para. 139. E/CN.4/2000/63/Add.1, Para. 125. “Report submitted by Mr Angelo Vidal d’Almeida Ribeiro, Special Rapporteur appointed in accordance with the CHR, Resolution no. 1986/20 of 10 March

218

324.

325.

326.

327.

328.

329.

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1986 (E/CN.4/1992/52), Paras. 132–139 and 185; Interim report on the elimination of all forms of religious intolerance, prepared by Mr Abdelfattah Amor, Special Rapporteur of the CHR, in accordance with General Assembly Resolution no. 50/183 of 22 December 1995 (A/51/542), Paras. 53–54; Summary of cases transmitted to Governments and replies received [by Ms Asma Jahangir] (E/CN.4/2006/5/Add.1), Paras. 10–11, 25–26, 138, 305 and 364,” cited in M. Wiener, “The Mandate of the Special Rapporteur on Freedom of Religion or Belief—Institutional, Procedural and Substantive Legal Issues,” Religion and Human Rights 2 (2007): 16. E/CN.4/2000/63/Add.1, Para. 125; Report of the Working Group on Arbitrary Detention, December 20, 2000, Para. 93; see also R. Wolff, “Conscientious Objection: Time for Recognition as a Fundamental Human Right,” Association of Student International Law Societies (ASILS) International Law Journal 6 (1982): 86, T. Hochstadt, “The Right to Exemption from Military Service of a Conscientious Objector to a Particular War,” Harvard Civil Rights-Civil Liberties Law Review 3 (1967): 30–31 and Marcus, “Conscientious Objection,” 521. Convention relating to the Status of Refugees, 189 UNTS 150, adopted on July 28, 1951, entered into force on April 22, 1954 and 1967 Protocol Relating to the Status of Refugees, 606 UNTS 267, adopted on January 31, 1967, entered into force on October 4, 1967. Office of the United Nations High Commissioner on Refugees (1979, reedited in 1992), “Handbook on Procedures and Criteria for Determining Refugee Status,” HCR/IP/4/Eng /Rev.1, UNHCR Publication: Geneva. For further information about the 1951 Refugee Convention and its 1967 Protocol see J. Rehman, International Human Rights Law, 2nd ed. (Harlow: Pearson, 2010), 644. In 1978 the General Assembly adopted a resolution recognizing the right of all persons to refuse to serve in military or police forces used to enforce apartheid in South Africa (Resolution no. 33/165). In 1998, the CHR adopted a resolution (Resolution no. 1998/77, Para. 7) concerning the right to asylum for conscientious objectors. It reads as follows: “[The CHR encourages] States, subject to the circumstances of the individual case meeting the other requirements of the definition of a refugee as set out in the 1951 Convention relating to the Status of Refugees, to consider granting asylum to those conscientious objectors compelled to leave their country of origin because they fear persecution owing to their refusal to perform military service when there is no provision, or no adequate provision, for conscientious objection to military service.” See the case for the intervener (the UNHCR) in the case of Sepet and Bülbül v. the Secretary of State for the Home Department, In the House of Lords on Appeal from Her Majesty’s Court of Appeal, Civil Division (England), 2. Article 1 A(2) of the 1951 Refugee Convention provides the definition of a refugee. A refugee is the person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular

Notes

330. 331. 332 .

333. 334. 335.

336.

337.

338.

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social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” For further information about “well-founded fear of persecution” see Rehman, International Human Rights Law, 654–656. See the Handbook, foreword (iv). Report on the 30th Session of the Executive Commission of the High Commissioner’s Programme, Paras. 68, 72(a), and 72(h), A/AC.96/572 (1979) and Report on the 31st Session of the Executive Commission of the High Commissioner’s Programme, Para. 36, A/AC.96/588 (1980), cited in K. J. Kuzas, “Asylum for Unrecognized Conscientious Objectors to Military Service: Is There a Right Not to Fight?,” Virginia Journal of International Law 31 (1990–1991): 455. The Handbook was reedited in 1992. See Chapter 5 of the Handbook, entitled “Special Cases.” Paragraph 168 states: “A person is clearly not a refugee if his only reason for desertion or draft-evasion is his dislike of military service or fear of combat. He may, however, be a refugee if his desertion or evasion of military service is concomitant with other relevant motives for leaving or remaining outside his country, or if he otherwise has reasons, within the meaning of the definition, to fear persecution.” Paragraph 169 states: “A deserter or draft-evader may also be considered a refugee if it can be shown that he would suffer disproportionately severe punishment for the military offence on account of his race, religion, nationality, membership of a particular social group or political opinion. The same would apply if it can be shown that he has well-founded fear of persecution on these grounds above and beyond the punishment for desertion.” Paragraph 170 states: “There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience.” Paragraph 171 states: “Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.”

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339. K. Musalo, “Swords into Ploughshares: Why the United States Should Provide Refuge to Young Men Who Refuse to Bear Arms for Reasons of Conscience,” San Diego Law Review 26 (1989): 856. 340. For further information on the meaning of persecution see also T. Malik, International Refugee Law: A Lexicon of Principles & Issues (Legal Education & Training Institute: Bangladesh Bar Council, 1998), 80–82. 341. The Handbook, Paras. 51–53. 342 . Letter from Joachim Henkel (January 30, 1986) to Karen Musalo, cited in Musalo, “Swords into Ploughshares,” 857. 343. Foughali v. Secretary of State for the Home Department [2000] 00/TH/01513 /IAT, June 2, 2000; see also United Kingdom Border Agency, “Asylum Policy Instruction on Military Service and Conscientious Objection,” 5, available at http://www.ukba.homeoffice.gov.uk/sitecontent/documents/policyandlaw /asylumpolicyinstructions/apis/militaryservice.pdf?view=Binary (accessed September 30, 2013). 344. K. Musalo, “Conscientious Objection as a Basis for Refugee Status: Protection for the Fundamental Right of Freedom of Thought, Conscience and Religion,” Refugee Survey Quarterly 26 (2007): 71; see also Para. 170, 172–174 of the Handbook. 345. Canas-Segovia v. Immigration and Naturalization Service, 902 F.2d 717, 1990 U.S. App. LEXIS 6169 (9th Cir. 1990). 346. Ibid., 1990 U.S. App. LEXIS 6169, Para. 3. 347. Ibid., 902 F.2d 717, Para. 720. 348. Ibid., 1990 U.S. App. LEXIS 6169, Para. 6. 349. Ramirez v. Canada (Minister of Employment and Immigration), Immigration Appeal Board, No. V86–6161, May 5, 1987, 4. 350. See, for example, the cases of Sepet and Bülbül and Krotov [AK (RussiaChechnya deserter)] v. Secretary of State for the Home Department, [2002] C1/2002/1537/IATRF. 351. J. Walch, “Aid to Military Refugees: the case of Sweden,” War Resistance 3 (1974): 27–28; A. Speck, “Demilitarisation in the Global Context” in the regional conference on conscientious objection and civilian service “To Europe through Conscientious Objection and Civilian Service,” September 20–22, 2004, Sarajevo; Eide and Mubanga-Chipoya, “Conscientious Objection to Military Service,” Para. 126; A. Smail, “The Church and the Military in South Africa” (London: Committee on South Africa War Resistance, 1981), 19. 352 . Faisal Kutty, “American Conscientious Objector Wins Right to Appeal Refugee Board Ruling,” Washington Report, January/February 2006, 46–47, available at http://faisalkutty.com/publications/washington-report/american-conscientious-objector-wins-right-to-appeal-refugee-board-ruling/ (accessed September 30, 2013); see also War Resisters Support Campaign, “War Resisters in Canada,” War Resisters Support Campaign: Toronto, available at http://www.resisters.ca/resisters_stories.html (accessed September 30, 2013).

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353. Paragraph 171 states: “ . . . Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.” 354. Kuzas, “Asylum for Unrecognized Conscientious Objectors,” 460. 355. Musalo, “Swords into Ploughshares,” 870 356. Eide and Mubanga-Chipoya, “Conscientious Objection to Military Service,” Para. 51. 357. Ibid., Para. 128. 358. Kuzas, “Asylum for Unrecognized Conscientious Objectors,” 461; see also Musalo, “Swords into Ploughshares,” 870; the Lawyers Committee for International Human Rights, “Conscientious Objection as a Human Right,” (background paper prepared for the CHR, Lawyers Committee for International Human Rights: New York, 1980), 9; de Jong, The Freedom of Thought, 178–179. 359. Musalo, “Swords into Ploughshares,” 870. 360. Hinzman and Hughey v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, April 30, 2007. 361. Ibid., Paras. 25 and 30. 362 . Hinzman and Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 420, March 31, 2006, Para. 189. 363. Hinzman and Hughey v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171, April 30, 2007 and Supreme Court of Canada, 50078 (S.C.C.), November 15, 2007. 364. C. M. Bailliet, “Assessing Jus ad Bellum and Jus in Bello within the Refugee Status Determination Process: Contemplations on Conscientious Objectors Seeking Asylum,” Georgetown Immigration Law Journal 20 (2005–2006): 354. 365. Lippman, “Recognition of Conscientious Objection,” 40–41. 366. Marcus, “Conscientious Objection,” 538. 367. For example, M.A. 899 F.2d, Paras. 312 and 317, cited in Kuzas, “Asylum for Unrecognized Conscientious Objectors,” 459. 368. Countries and nations may act differently according to a soldier’s nationality. See, for example, Krotov [AK (Russia-Chechnya deserter)] v. Secretary of the State for the Home Department, [2004] EWCA (Civ) 69, 2004 1. W.L.R. 1825, Para. 2 (citing Krotov [AK (Russia-Chechnya deserter)] v. Secretary of State for the Home Department, [2002] C1/2002/1537/IATRF, Para. 25). 369. The Immigration Appeal Tribunal mentioned the term “sufficiently” in the case of Krotov [AK (Russia-Chechnya deserter)] v. Secretary of the State for the Home Department, [2004] UKIAT, 00294, 29 October 2004, Para. 31. 370. Bailliet, “Assessing Jus ad Bellum,” 367. 371. Musalo, “Swords into Ploughshares,” 869. 372 . In spite of Article 10 of the ECHR, the Council of the European Union adopted the Qualification Directive in April 2004, which restricts the

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377. 378.

379.

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grounds for asylum to cases in which the applicant has suffered “prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses” (The Council of the European Union, Council Directive 2004/83/EC, “On Minimum Standards for the Qualification and Status of Third Country Nationals or Stateless Persons as Refugees or as Persons who Otherwise Need International Protection and the Content of the Protection Granted,” Articles 9(2)(e), 2004 O.J. (L 304)12). That the Directive has taken a narrow approach is demonstrated by the fact that it limits the grounds to those “extreme circumstances where the individual would be engaged in crimes against peace, war crimes, crimes against humanity, serious nonpolitical crimes, or acts contrary to the purposes and principles of the UN” (Musalo, “Conscientious Objection,” 76). The UNHCR, instead, has taken a much wider approach in which refugee status is available whenever military service is contrary to “genuine political, religious or moral convictions, or to valid reasons of conscience” (European Council on Refugees and Exiles (April 29, 2004), “European Council on Refugees and Exiles Information Note on the Council Directive 2004/83/EC,” IN1/10/2004/ext/CN). For further information see Bailliet, “Assessing Jus ad Bellum,” 367. Musalo, “Conscientious Objection,” 76. Lippman, “Recognition of Conscientious Objection,” 40–41; Bailliet, “Assessing Jus ad Bellum,” 354. G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law, 3rd ed. (Oxford: Oxford University Press, 2007), 114. R v. Immigration Appeal Tribunal and Secretary of State for the Home Department, ex parte Shah, [1997] Imm. A.R. 145, July 23, 1997; see also Goodwin v. the United Kingdom, Application no. 28957/9535, Eur. Comm’n H.R. Dec. & Rep. 18 (2002), Para. 74. See, for example, HRC, General Comment no. 22 and the view of Yeo-Bum Yoon and Mr Myung-Jin Choi v. the Republic of Korea . See, for example, Concluding observations of the Human Rights Committee: Ukraine (UN Doc. CCPR/C/UKR/6 of November 28, 2006), Para. 12; Concluding observations of the Human Rights Committee: Chile (UN Doc. CCPR/C/CHL/CO/5 of May 18, 2007), Para. 13; HRC, General Comment no. 22, Para. 11; Min-Kyu Jeong et. al. v. the Republic of Korea . Takemura, International Human Right, 80.

5

Regional Level: The European and the Inter-American Human Rights Systems

1. For further information on the travaux préparatoires of Article 9 of the European Convention on Human Rights, see A. H. Robertson, Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights (CETP), vol. I–VIII, Preparatory Commission of the Council of

Notes

2.

3. 4.

5. 6.

7. 8. 9. 10. 11. 12 . 13. 14. 15.

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Europe, Committee of Ministers, Consultative Assembly, May 11–September 8, 1949 (The Hague: Martinus Nijhoff, 1975); see also M. D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), 262–272; C. Evans, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2003), 38–45; D. C. Decker and L. Fresa, “The Status of Conscientious Objection under Article 4 of the European Convention on Human Rights,” New York University Journal of International Law and Politics 33 (2001): 382–383. Evans, Religious Liberty, 263; see also A. H. Robertson, “The European Convention for the Protection of Human Rights,” British Yearbook of International Law 27 (1950): 146–149; A. H. Robertson and J. G. Merrills, Human Rights in Europe: A Study of the European Convention on Human Rights, 3rd ed. (Cambridge: Grotius Publications Ltd., 1993), 1–14. Freedom of thought and conscience was not mentioned in the Draft European Convention on Human Rights, Article 1(e), CETP, vol. I, Appendix, 296. CETP, vol. I, 44–46. “Our statute” means the Statute of the Council of Europe that was signed on May 5, 1949. Article 3 of the Statute of the Council of Europe states: “Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.” Agendas and Minutes of the Consultative Assembly, First Session, 34 in CETP, vol. I, 36. Mr Cingolani, the Italian delegate, was concernrd about the “suppression of the most sacred right of all—that of religious belief and the works through which religious faith is manifested” (CETP, vol. I, 62). Mr Everett, the Irish delegate, added: “Civil and religious freedom are but two of the fundamental rights of man. . . . If the Council of Europe achieves no other end than the guarantee of those two rights, it will have justified its existence” (CETP, vol. I, 102–104). In addition, the other speakers referred to the importance of their own religious beliefs and the importance of religion to their countries (see speeches by Ungoed-Thomas UK, 78, Maccas (Greece), 106, MacEntee (Ireland), 140 cited in CETP, vol. I. For further information about the above debate, see Evans, Freedom of Religion, 39–40). CETP, vol. I, 174. Ibid. Ibid., 178. Ibid., 288. CEPT, vol. IV, 62. Ibid., 84–95. Ibid., 172, 274. Ibid., 258 and 278. CETP, vol. V, Legal Committee, Ad Hoc Joint Committee, Committee of Ministers, June 23–August 28, 1950, 142.

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16. See the records of sittings in the CETP, vol. V, 210–351 and CETP, vol. VI, Consultative Assembly, 2–191. 17. CETP, vol. V, Legal Committee, Ad Hoc Joint Committee, Committee of Ministers, June 23–August 28, 1950, 142; see also CETP, vol. V, 210–351; CETP, vol. VI, Consultative Assembly, 2–191 and CETP, vol. VII, Standing Committee of the Consultative Assembly, Consultative Assembly, Committee of Experts, Committee of Ministers, Legal Committee, November 3, 1950– May 15, 1951, 38–40. 18. Evans, Freedom of Religion, 40. 19. Decker and Fresa, “Status of Conscientious Objection,” 397–398. 20. There were no official or unofficial figures from the 1950s to show how many countries had conscription and how many recognized the right to conscientious objection. In 1972, the first report on conscientious objection was published by the UN Secretary-General. Fifty-eight countries responded to the questionnaire during the preparation of the report. Twenty-five countries out of 58 did not have any form of compulsory military service. Of the other 33 countries, 19 did not recognize conscientious objection at all. However, only 58 countries responded to the questionnaire (E/CN.4/1118, Corr. 1 and Add. 1 through 3); today, 168 out of the 192 UN members still have armed forces, which are either professional or based on compulsory military service, and over 35 percent of those 168 countries with armed forces have recognized conscientious objection as a right (For further information regarding most of these countries see European Bureau for Conscientious Objection (2011), “Report to the Council of Europe,” 62, 63; C. Barbey, La Nonmilitarisation et les pays sans armée: une réalité (Switzerland: APRED, 2001); B. Horeman and M. Stolwijk (1998, updated in 2005), “Refusing to Bear Arms: A Worldwide Survey of Conscription and Conscientious Objection to Military Service,” War Resisters’ International: London; see also D. Brett (2006) “Military Recruitment and Conscientious Objection: A Thematic Global Survey,” Conscience and Peace Tax Intenational: Leuven and Geneva; and M. Stolwijk (2005, updated in 2008) “The Right to Conscientious Objection in Europe: A Review of the Current Situation,” Quaker Council for European Affairs: Brussels, available at http://www.qcea.org/work/ human-rights/conscientious-objection/ (accessed September 30, 2013)). This percentage (over 35 percent) must have been lower during the 1950s. 21. CETP, vol. IV, 16. 22 . Article 18(3) of the ICCPR states: “Freedom to manifest one’s religion or beliefs may be subject to only such limitations as are prescribed by law and are necessary to protect public safety order health or morals or the fundamental rights and freedom of others.” 23. European Court of Human Rights, “Article 9: Freedom of Thought, Conscience and Religion,” (Strasbourg: Human Rights Practice R 2, Council of Europe, November 2001), 4. 24. For further information about freedom of thought see C. Skakkebaek, “Article 9 of the European Convention on Human Rights,” (Strasbourg: H (92) 16, Human Rights Information Centre Directorate of Human Rights, 1992), 10.

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25. Kjeldsen, Busk Madsen and Petersen v. Denmark, Application nos. 5095/71, 5920/72, 5926/72, December 7, 1976; Angelini v. Sweden, Application no. 10491/83, 51 Eur. Comm’n H.R. Dec. and Rep. 41 (1986); X and other v. Belgium (Belgian Linguistic Case), Application no. 1769/62, July 27, 1963; Salonen v. Finland , Application no. 27868/95, July 2, 1997; Hazar and others v. Turkey, Application nos. 62566/00–62577/00 and 62579–62581/00, January 10, 2002. 26. Reformed Church of X v. the Netherlands, Application no. 1497/62, 5 Y. B. Eur/ Conv. on H. R. 286 (1962), Para. 39; X v. Austria , Application no. 1718/62, 8 Y.B. Eur. Conv. on H. R. 168 (1965), 30; X v. Austria , Application no. 4982/71, 15 Y.B. Eur. Conv. on H. R. 468 (1972), 50; X and Y v. the Netherlands, Application no. 7653/74, Eur. Comm’n H.R. Dec and Rep. 2 (1974), 118. For further information see Skakkebaek, 9. 27. See the section titled “The European Commission of Human Rights and the European Court of Human Rights—An Interpretation of the Right to Conscientious Objection to Military Service” in this chapter. 28. Chappell v. the United Kingdom, Application no. 12587/86, Eur. Comm’n H.R. Dec. and Rep. 53 (1987), 246; X and Church of Scientology v. Sweden, Application no. 7805/77, 16 Eur. Comm’n H.R. Dec. and Rep. 68 (1979), 72; X v. the United Kingdom, Application no. 7291/75, 11 Eur. Comm’n H.R. Dec. and Rep. 55 (1977). 29. Kimlya and others v. Russia, Application nos. 76836/01, 32782/03, October 1, 2009, Para. 79. 30. Otto Preminger Institut v. Austria , Application no. 13470/87, September 20, 1994, Para. 50; see also Müller and others v. Switzerland , Application no. 10737/84, May 24, 1988, Paras. 30, 35. 31. For further information about the term “religion” in the case-law of the Court and the Commission see J. Murdoch, Freedom of Thought, Conscience and Religion: A Guide to the Implementation of Article 9 of the European Convention on Human Rights (Strasbourg: Human Rights Handbooks no. 9, Council of Europe, 2007), 12. 32 . See, for example, ISKCON and others v. the United Kingdom, Application no. 20490/92, 76-A Eur. Comm’n H.R. Dec and Rep. 41 (1994), 90; Cha’are Shalom and Tsedek v. France, Application no. 27417/95, June 27, 2000, Reports 2000-VII. 33. Chappell v. the United Kingdom, 241. 34. Kokkinakis v. Greece, Application no. 14307/88, May 25, 1993, Para. 31. 35. X and Church of Scientology v. Sweden, 68. 36. X v. Austria , Application no. 8652/79, 26 Eur. Comm’n H.R. Dec. and Rep. 89 (1981), 89. 37. Omkarananda and the Divine Light Zentrum v. the United Kingdom, Application no. 8188/77, 25 Eur. Comm’n H.R. Dec. and Rep. 105 (1981), 105. 38. Campbell and Cosans v. the United Kingdom, Application nos. 7511/76; 7743/76, February 25, 1982, Para. 36; see also Valsamis v. Greece, Application no. 21787/93, December 18, 1996, Para. 25.

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39. Arrowsmith v. the United Kingdom, Application no. 7050/75, 19 Eur. Comm’n H.R. Dec. and Rep. 5 (1978), Para. 69; Le Cour Grandmaison and Fritz v. France, Application nos. 11567/85 and 11568/85, 53 Eur. Comm’n H.R. Dec. and Rep. 150 (1987), 160. 40. W v. the United Kingdom, Application no. 18187/91, February 10, 1993, Para. 45. 41. Knudsen v. Norway, Application no. 11045/84, 42 Eur. Comm’n H.R. Dec. and Rep. 247 (1985). 42 . Arrowsmith v. the United Kingdom, Para. 69. 43. For further information about the terms “belief ” and “political ideologies” in the case-law of the Court and the Commission, see Murdoch, Freedom of Thought, 12. 44. X v. Italy, Application no. 6741/74, 5 Eur. Comm’n H.R. Dec. and Rep. 83 (1976). 45. Hazar and others v. Turkey. 46. Kokkinakis v. Greece, Para. 31. 47. Ibid., Para. 31; Kustannus AB v. Finland, Application no. 20471/92, April 15, 1996, Para. 43; Angelini v. Sweden, 41. 48. Darby v. Sweden, Application no. 11581/85, April 11, 1988, Para. 51. 49. Angelini v. Sweden, 48. 50. B. G. Tahzib, Freedom of Religion or Belief Ensuring Effective International Legal Protection (Martinus Nijhoff: The Hague/Boston/London, 1996), 73. 51. Clements, Mole, and Simmons lists five questions to be asked in order to understand whether there is a violation of Article 8–11 in L. Clements, N. Mole, and A. Simmons, European Human Rights Taking a Case under the Convention, 2nd ed. (London: Sweat/Maxwell, 1999), 175; see also Murdoch, Freedom of Thought, 10. 52 . See, for example, Malone v. the United Kingdom, Application no. 8691/79, August 2, 1984. 53. See, for example, Halford v. the United Kingdom, Application no. 20605/92, June 25, 1997. 54. See, for example, Malone v. the United Kingdom; The Sunday Times v. the United Kingdom, Application no. 6538/74, April 26, 1979. 55. See, for example, Chappell v. the United Kingdom, 247; X v. the Netherlands, Application no. 1068/61, 5 Y. B. Eur. Conv. on H. R. 278 (1962), 284. 56. See, for example, X v. Sweden, Application no. 9820/82, October 5, 1982; X v. the Federal Republic of Germany, Application no. 12230/86, 11 Eur. Comm’n H.R. Dec. and Rep. 101 (1987), 102. 57. See, for example, Childs v. the United Kingdom, Application no. 9813/82, March 1, 1983; X v. the United Kingdom, Application no. 6886/75, 5 Eur. Comm’n H.R. Dec. and Rep. 100 (1976). 58. See, for example, Kokkinakis v Greece ; Larissis and others v. Greece, Application nos. 140/1996/759/958–960, February 24, 1998; ISKCON and others v. the United Kingdom.

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59. See, for example, ISKCON and other v. the United Kingdom, 106; Penditis v. Greece, Application no. 23238/94, June 9, 1997, Para. 4 (friendly settlement); Kokkinakis v Greece, Para. 47; Manoussakis and others v. Greece, Application no. 18748/91, August 29, 1996, Para. 44. 60. “The term ‘margin of appreciation’ refers to the space for maneuver that the Strasbourg organs are willing to grant national authorities, in fulfilling their obligations under the European Convention on Human Rights (the Convention)” (S. Greer, The Margin of Appreciation: Interpretation and Discretion under the European Convention on Human Rights, Council of Europe, 5 cited in the Council of Europe, Judicial Professions the Lisbon Network, 2000), available at http://www.coe.int/t/dghl/cooperation/lisbonnetwork/themis/echr/paper2_en.asp (accessed September 30, 2013). See also Lawless v. Ireland , Application no. 332/57, July 1, 1961; Handyside v. the United Kingdom, Application no. 5493/72, December 7, 1976; The Sunday Times v. the United Kingdom, Application no. 6538/74, April 26, 1979. 61. Handyside v. the United Kingdom, Paras. 49–50. 62 . Article 15(1) states: “In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” 63. Article 15(2) states: “No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision.” Non-derogable means that “A right that, at least in theory, cannot be taken away or compromised.” Cited in United Nations Multilingual Terminology Database, available at http://unterm.un.org/DGAACS/unterm.nsf/8fa942046 ff7601c85256983007ca4d8/d4dbb9694e5b40da8525751b0077e882?OpenDo cument (accessed September 30, 2013). 64. Evans, Freedom of Religion, 165. For further information see Evans, Religious Liberty, 317; F. G. Jacobs and R. C. A. White, The European Convention on Human Rights, 2nd ed. (Oxford: Clarendon, 1996), 211; P. van Dijk and G. J. H. Van Hoof, Theory and Practice of the European Convention on Human Rights, 3rd ed. (Deventer: Kluwer Law and Taxation, 1998), 557. 65. Evans, Religious Liberty, 317. 66. Article 53 states: “Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party”; Evans, Freedom of Religion, 165; see also M. N. Shaw, “Freedom of Thought, Conscience and Religion,” in The European System for the Protection of Human Rights, ed. R. St. J. Macdonald, F. Matscher, and H. Petzold (Dordrecht and London: Kluwer Academic, 1993), 445–446. 67. Ülke v. Turkey ; Bayatyan v. Armenia , Application no. 23459/03, October 27, 2009 (C); Faizov v. Russia , Application no. 19820/04, January 15, 2009.

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68. For further information on the travaux préparatoires of Article 4(3)(b) of the European Convention on Human Rights see Decker and Fresa, “Status of Conscientious Objection,” 386–393; see also CETP, vol. I–VIII. 69. Recommendation no. 38 to the Committee of Ministers adopted on September 8, 1949 on the Conclusion of the Debates, Eur. Consult. Ass., 1st Session, Doc. no. 108 (1949), reprinted in CETP, vol. II, Consultative Assembly, Second Session of the Committee of Ministers, Standing Committee of the Assembly, August 10–November 18, 1949, 274 and 276. 70. CETP, vol. III, 204, 206, 282, and 320. 71. Ibid. 72. Amendments to Article 2 of the Recommendation of the Consultative Assembly Proposed by the Expert of the United Kingdom, Comm. of Experts, Doc. A 798 (February 6, 1950), reprinted in CETP, vol. III, 204, 206. 73. Amendment to Articles 1, 2, 4, 5, 6, 8, and 9 of the Committee’s Preliminary Draft Proposed by the Expert of the United Kingdom, Comm. of Experts, Doc. CM/WP 1 (50) 2; A 915 (March 6, 1950), reprinted in CETP, vol. III, 280, 282. 74. Ibid. 75. Decker and Fresa, “Status of Conscientious Objection,” 387–388. 76. CETP, vol. IV, 16. 77. Ibid. 78. Ibid. 79. Conclusions of the First Meeting of Advisers, Doc. Committee of Ministers, 3rd Session, point VIII, 78 (March 29, 1950), reprinted in CETP, vol. IV, 84; see also Minutes of the Meeting, Doc. Committee of Ministers, 3rd Session, point II, 12 (April 1, 1950) reprinted in CETP, vol. IV, 84. 80. Ibid., 170, 178, 218, 242, and 258. 81. The phrase “by the lawful order of a court” is deleted. 82 . The phrase “according to the provisions of Article 5 hereafter” was added. 83. Draft Convention Annexed to the Report (Doc. CM/WP 4 (50) 19 annexe; CM/WP 4 (50) 16 rev.; A 1452) reprinted in CETP, vol. IV, 274. 84. Text of Amended Articles After Deliberation at the sitting of August 4, 1950, Doc. CM 1 (50) 9, reprinted in CETP, vol. V, 74; see also Draft Convention adopted by the Sub-Committee, Doc. CM (50) 52, A 1884 (August 7, 1950) reprinted in CETP, vol. V, 76. 85. Decker and Fresa, “Status of Conscientious Objection,” 397. 86. PACE, Resolution no. 337 (1967). 87. PACE, Recommendation no. 478 (1967), January 26, 1967. 88. Lippman, M., “The Recognition of Conscientious Objection to Military Service as an International Human Right,” California Western International Law Journal 21 (1990/1991): 46. The Parliamentary Assembly of the Council of Europe was called the Consultative Assembly at the time. 89. The second statutory organ is the Committee of Ministers. For further information see the PACE, available at http://assembly.coe.int/nw/Home-EN.asp (accessed September 30, 2013). 90. PACE, Resolution no. 337 (1967), Para. (A) Basic Principle.

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91. Eide, A., and C. Mubanga-Chipoya, 1983, “Conscientious Objection to Military Service,” UN Doc. E/CN.4/Sub.2/1983/30, UN Publication: New York and Geneva. Para. 153/1-a; see also the PACE, Resolution no. 337 (1967); and CHR, Resolutions of 1989/59 and 1993/84. These documents include only “religious, ethical, moral, humananitarian or similar motives” as grounds for conscientious objection. 92 . PACE, Recommendation no. 478 (1967), Para. 2(a). 93. Nineteenth Report of the Committee of Ministers to the Consult. Ass., Eur. Consult. Ass., Doc 2359 (1967) 159–160. For further information see also Lippman, 47. 94. PACE, Recommendation no. 816 (1977), Para. 4. 95. Communication on the Activities of the Committee of Ministers, Eur. 4197, Parl. Ass., 30th Session, Doc. 4197 (1978) 2. 96. Council of Europe, Committee of Ministers, Recommendation no. 87(8). 97. Committee on Legal Affairs and Human Rights, Doc. 8809, May 4, 2001, Para. 15. 98. PACE, Recommendation no. 1518 (2001), May 23, 2001, Para. 2. 99. Ibid., Para. 5(i). Notably, “after conscription” means that “conscripts may be called up for military service if this is considered to be necessary by the government. In most of these countries, legislation provides for the re-introduction of conscription during time of war or during time of emergency.” In the case of the reintroduction of conscription, this right should be granted to all individuals (For further information see Stolwijk (2005, updated in 2008), x). 100. Ibid., Para. 5(ii). 101. Ibid., Para. 5(iii). 102 . Ibid., Para. 5(iv). 103. Ibid., Para. 6. 104. Committee of Ministers’ reply to PACE Recommendation no. 1518 (2001), adopted at the 785th meeting of the Ministers’ Deputies (February 26–27, 2002). 105. PACE, Recommendation no. 1742 (2006). 106. Ibid., Para. 8. 107. For further information on these resolutions see Takemura, International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders (Heidelberg: Springer, 2008), 91–92. 108. PACE, Resolution no. 1380 (2004), June 22, 2004, Para. 7; see also ibid, Para. 23 (iii). 109. PACE, Resolution no. 1532(2007), January 23, 2007. 110. PACE, Recommendation no. 1518 (2001). 111. “It comprises the Foreign Affairs Ministers of all the member States, or their permanent diplomatic representatives in Strasbourg. It is both a governmental body, where national approaches to problems facing European society can be discussed on an equal footing, and a collective forum, where Europewide responses to such challenges are formulated” (“About the Committee of

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112 . 113.

114.

115.

116.

117.

118. 119. 120.

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Ministers,” Council of Europe, Comittee of Ministers official website, available at http://www.coe.int/t/cm/aboutCM_en.asp (accessed September 30, 2013)). Ibid. In accordance with Article 46(2) of the Convention, “the final judgment of the Court [ECtHR] shall be transmitted to the Committee of Ministers, which shall supervise its execution.” This work is carried out mainly at four regular meetings (DH/HR meetings) every year. Scozzari and Giunta v. Italy, Application nos. 39221/98 and 41963/98, July 13, 2000 (GC), Para. 249; Mente ş v Turkey, Application no. 23186/94, July 24, 1998, Para. 24. For further information see U. Erdal and H. Bak ırcı, Article 3 of the European Convention on Human Rights (Geneva: The World Organisation against Torture, 2006), 71. In some cases, interim resolutions may prove appropriate. Both kinds of resolutions are public (see “About the Committee of Ministers,” Council of Europe, Comittee of Ministers official website, available at http://www.coe. int/t/cm/aboutCM_en.asp (accessed September 30, 2013)). Statute of the Council of Europe, ETS 001, adopted on May 5, 1949. Article 3 of the Statute states: “Every Member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.” Moreover, under Article 8 of the Statute, “Any Member of the Council of Europe which has seriously violated Article 3 may be suspended from its rights of representation and requested by the Committee of Ministers to withdraw under Article 7. If such Member does not comply with this request, the Committee [of Ministers] may decide that it has ceased to be a Member of the Council as from such date as the Committee [of Ministers] may determine.” (See also Resolution no. (51)30 adopted by the Committee of Ministers, May 3, 1951). Article 15 of the Statute states: “a-) On the recommendation of the Consultative Assembly or on its own initiative, the Committee of Ministers shall consider the action required to further the aim of the Council of Europe, including the conclusion of conventions or agreements and the adoption by governments of a common policy with regard to particular matters. Its conclusions shall be communicated to members by the Secretary General; b-) In appropriate cases, the conclusions of the Committee may take the form of recommendations to the governments of members, and the Committee may request the governments of members to inform it of the action taken by them with regard to such recommendations.” Council of Europe, Committee of Ministers, Recommendation no. R (87)8. Ibid. (A) Basic Principle (emphasis added). M-F. Major, “Conscientious Objection and International Law: A Human Right?,” Case Western Reserve Journal of International Law 24 (1992): 359.

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231

121. Decker and Fresa, “Status of Conscientious Objection,” 415. 122 . Council of Europe, Committee of Ministers, Recommendation no. R (87)8, Paras. 2–11. 123. Ibid., Para. 9. 124. Resolution no. 337 (1967) and Recommendation no. 816 (1977) by the PACE refer to specific grounds for conscientious objection (religious, ethical, moral, humanitarian, philosophical, or similar motives). 125. Paragraph 2 (under the subheading, titled “Basic principles”) of Resolution no. 337 (1967) and of Recommendation no. 816 (1977) of the Parliamentary Assembly. 126. Explanatory Report to Recommendation no. R (87)8, Paras. 13 and 14. 127. Ibid., Para. 16. 128. Ibid. 129. For further discussion on this issue see L. M. Hammer, The International Human Right to Freedom of Conscience: Some Suggestions for Its Development and Application (Dartmouth: Ashgate, 2001), 203; see also Major, “Conscientious Objection and International Law,” 375–376. 130. Hammer,The International Human Right, 203. 131. Council of Europe, Committee of Ministers, Recommendation no. R (87)8, Para. 15. 132 . Ibid., Para. 16. 133. Ibid., Para. 11. For further discussion on this issue see also Hammer, The International Human Right, 203. 134. Council of Europe, Committee of Ministers, Recommendation no. (2010)4, February 24, 2010. 135. Ibid, Para. 1. 136. Paragraph 40 of the Recommendation no. (2010)4 (Council of Europe, Committee of Ministers): “Members of the armed forces have the right to freedom of thought, conscience and religion, including the right to change religion or belief at any time. Specific limitations may be placed on the exercise of this right within the constraints of military life. Any restriction should however comply with the requirements of Article 9, paragraph 2, of the Convention. There should be no discrimination between members of the armed forces on the basis of their religion or belief.” (For further information see Amnesty International et al., “Third Party Intervention to the Grand Chamber of the European Court of Human Rights in the case of Amnesty International and et. al., July 15, 2010, “Third Party intervention to the Grand Chamber of the European Court of Human Rights in the case of Bayatyan v. Armenia,” Application no. 23459/03, Annex 5. 137. Paragraph 42 of the Recommendation no. (2010)4 (Council of Europe, Committee of Ministers): “Professional members of the armed forces should be able to leave the armed forces for reasons of conscience.” 138. Article 19 of the ECHR. 139. For further information see Erdal and Bak ırcı, Article 3 of the European Convention, 36–38. 140. Arrowsmith v. the United Kingdom; Grandrath v. the Federal Republic of Germany, Application no. 2299/64, 10 Y.B. Eur. Conv. on H.R. 626 (1966);

232

141.

142 .

143.

144.

145. 146. 147. 148. 149. 150. 151. 152 . 153. 154. 155. 156. 157.

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X v. Austria , Application no. 5591/72, 43 Collections 161 (1973); X v. the Federal Republic of Germany, Application no. 7705/76, 9 Eur. Comm’n H.R. Dec. and Rep. 196 (1977); N v. Sweden, Application no. 10410/83, 40 Eur. Comm’n H.R. Dec. and Rep. 203 (1984); Johansen v. Norway, Application no. 10600/83, 44 Eur. Comm’n H.R. Dec. and Rep. 155 (1985). European Court of Human Rights, Annual Report 2012 (Strasbourg: Council of Europe, 2013), 147-161. It should be noted that 45,000 out of more than 100,000 applications were received by the Commission and the Court between 1955 and 1998 (European Court of Human Rights, Annual Report 2010 (Strasbourg: Council of Europe, 2011), 153). Grandrath v. the Federal Republic of Germany ; Karnell and Hardt v. Sweden, Application no. 4733/71, 14 Y.B. Convention on HR (Cmn) 676 (1971); Darby v. Sweden, Application no. 11581/85, April 11, 1988; Hoffmann v. Austria , Application no. 12875/87, June 23, 1993; Kokkinakis v. Greece. T. J. Gunn, “Adjudicating Rights of Conscience Under the European Convention on Human Rights,” in Religious Human Rights in Global Perspective, Legal Perspective, ed. J. van der Vyver and J. Witte (The Hague: Martinus Nijhof, 1996), 305–306 and 310. There have since been further cases in which Article 9 has been consulted; see the following cases: Otto Preminger Institut v. Austria; Wingrove v. the United Kingdom, Application no. 17419/90, November 25, 1996; Ahmet Sadık v. Greece, Application no. 18877/91, November 15, 1996; Manoussakis and others v. Greece ; Kalaç v. Turkey, Application no. 20704/92, July 1, 1997; Leyla Şahin v. Turkey, Application no. 44774/98, November 10, 2005 (GC); Lautsi v. Italy, Application no. 30814/06, November 3, 2009. Kokkinakis v. Greece, Para. 6. The applicant also claimed a violation of Articles 5(1), 6(1) and 2, but they were declared inadmissible (See Kokkinakis v. Greece, Para. 1). Kokkinakis v. Greece, Eur. Comm’n H.R.’s Report, December 3, 1991, Para. 36. Kokkinakis v. Greece, Para. 47. Ibid., Para. 31. Ibid, Paras. 72–74. Kokkinakis v. Greece, Para. 31. D. Gomien, Short Guide to the European Convention on Human Rights, 3rd ed. (Strasbourg: Council of Europe, 1991), 95. Murdoch, Freedom of Thought, 13. S. Naismith, “Religion and the European Convention on Human Rights,” Human Rights and UK Practice 2 (2001): 9. Kokkinakis v. Greece, Paras. 33, 36–50. Ibid., Para. 36. According to Article 1 of the European Convention on Human Rights, “the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms” set out in the Convention and its Protocols (For further information on positive obligations see J-F. Akandji-Kombe, Positive

Notes

158.

159. 160. 161. 162 . 163. 164. 165. 166. 167. 168. 169. 170. 171.

172 . 173. 174. 175. 176. 177. 178. 179. 180. 181.

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Obligations under the European Convention on Human Rights: A Guide to the Implementation of the European Convention on Human Rights, Human Rights Handbooks no. 7 (Strasbourg: Council of Europe, 2007), 5). Article 43 of the ECtHR states that “1. Within a period of three months from the date of the judgment of the Chamber, any party to the case may, in exceptional cases, request that the case be referred to the Grand Chamber; 2. A panel of five judges of the Grand Chamber shall accept the request if the case raises a serious question affecting the interpretation or application of the Convention or the Protocols thereto, or a serious issue of general importance; 3. If the panel accepts the request, the Grand Chamber shall decide the case by means of a judgment.” Bayatyan v. Armenia , Application no. 23459/03, July 7, 2011 (GC). Grandrath v. the Federal Republic of Germany, Application no. 2299/64, 10 Y.B. Eur. Conv. on H.R. 626 (1966). Ibid., Para. 1. Ibid., Para. 9. Ibid., Para. 10. Ibid., Para. 29. Ibid., Paras. 30 and 31. Ibid., Para. 31. Ibid., Para. 32. Ibid., Paras. 32 and 33. Ibid., Para. 47. Ibid., Para. 34. X. v. Austria , Application no. 5591/72; X. v. the Federal Republic of Germany, Application no. 7705/76; Johansen v. Norway ; A. v. Switzerland , Application no. 10640/83, 38 Eur. Comm’n H.R. Dec. and Rep. 219 (1984); Autio v. Finland , Application no. 17086/90, 72 Eur. Comm’n H.R. Dec. and Rep. 245 (1990). Major,“Conscientious Objection and International Law,” 361. Autio v. Finland; Julin v. Finland , Application no. 17087/90, Eur. Comm’n H.R. Dec. and Rep. (1991). A v. Switzerland , 223. See, for example, Autio v. Finland; Julin v. Finland. Raninen v. Finland , Application no. 20972/92, 84-A Eur. Comm’n H.R. Dec. and Rep. 17 (1996); N v. Sweden. Conscientious Objectors v. Denmark, Application no. 7565/76, 9 Eur. Comm’n H.R. Dec. and Rep. 117 (1977), 118. Danish Statute no. 330 of June 13, 1973 and Statute no. 326 of June 26, 1975, Para. 4. Conscientious Objectors v. Denmark, 117–118. Ibid., 118–119. Autio v. Finland , Application no. 17086/90, 72 Eur. Comm’n H.R. Dec. and Rep. 245 (1990).

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182 . When the the Ministry of Labour ordered the applicant to start his service in 1989, alternative civilian service was for 16 months, whilst military service was for eight months in Finland. 183. This paragraph was cited in Autio v. Finland , 249–250. 184. Ibid. 185. Ibid., 249. 186. Autio v. Finland; Julin v. Finland. 187. Raninen v. Finland. 188. Ibid., March 7, 1996, complaints, Para. 4. 189. Ibid., Para. 5(ca). 190. Ibid., Para. 5(a). 191. Tsirlis and Koulompas v. Greece, Application nos. 19233/91 and 19234/91, May 29, 1997. 192 . Ibid., Para. 52. 193. Tsirlis and Koulompas v. Greece, Eur. Comm’n H.R.’s Report, Para. 120. 194. Ibid., Para. 124. 195. Ibid., 25. 196. Ibid. 197. Vienna Convention on the Law of Treaties, 1155 UNTS 331, adopted on May 23, 1969, entered into force on January 27, 1980, Article 31(1). 198. PACE, Recommendation no. 1518 (2001), Para. 2. 199. Tsirlis and Koulompas v. Greece, Eur. Comm’n H.R.’s Report, 25. 200. Article 31(2) states: “The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.” 201. Soering v. the United Kingdom, Para. 103; Öcalan v. Turkey, Application no. 46221/99, March 12, 2003 (C), Para. 189, May 12, 2005 (GC), Paras. 158, 165, 198; Al-Saadoon and Mufdhi v. the United Kingdom, Application no. 61498/08, March 2, 2010, Para. 144. For other issues see also Demir and Baykara v. Turkey, Application no. 34503/97, November 12, 2008 (GC), Para. 66; Klass and others v. the Federal Republic of Germany, Application no. 5029/71, September 6, 1978, Para. 68; Saadi v. the United Kingdom, Application no. 13229/03, January 29, 2008 (GC), Para. 62; Soering v. the United Kingdom, Application no. 14038/88, June 26, 1989, Para. 103; Stec and others v. the United Kingdom, Application nos. 65731/01 and 65900/01, July 6, 2005 (GC), Para. 48. 202 . Ireland v. the United Kingdom, Application no. 5310/71, January 18, 1978, Para. 239. 203. See, for example, Soering v. the United Kingdom, Para. 87; Artico v. Italy, Application no. 6694/74, May 13, 1980, Para. 33; Loizidou v. Turkey,

Notes

204. 205.

206. 207. 208. 209. 210. 211. 212 . 213.

214. 215. 216. 217. 218.

219.

220. 221. 222 . 223. 224.

225. 226. 227. 228. 229. 230.

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Application no. 15318/89, March 23, 1995 (GC), Para. 72; McCann and Others v. the United Kingdom, Application no. 18984/91, September 27, 1995 (GC), Para. 146. For further information see also Decker and Fresa, “Status of Conscientious Objection,” 398. Evans, Freedom of Religion, 177; see also Thlimmenos v. Greece, Application no. 34369/97, April 6, 2000 (GC). Gilbert, H., “The Slow Development of the Right to Conscientious Objection to Military Service under the European Convention on Human Rights,” European Human Rights Law Review 5 (2001): 555. Thlimmenos v. Greece, April 6, 2000 (GC), Para. 2. Ibid., Para. 42. Ibid., Para. 43. Ibid., Paras. 46–49. Ibid., Paras. 52 and 53. Ibid., Para. 49. Thlimmenos v. Greece, Eur. Comm’n H.R.’s Report, Para. 45. Dissenting Opinion of Mr C.L. Rozakis, Mrs J. Liddy, MM B. Marxer, M.A. Nowicki, B. Conforti and N. Bratza at Thlimmenos v. Greece, Eur. Comm’n H.R.’s Report, 13–15. Concurring Opinion of Mr E.A. Alkema at Thlimmenos v. Greece, Eur. Comm’n H.R.’s Report, 16–17. Thlimmenos v. Greece, Eur. Comm’n H.R.’s Report, 16. Ibid. Ibid. Öcalan v. Turkey, Application no. 46221/99, March 12, 2003 (C), Para. 190, May 12, 2005 (GC), Para. 163; Al-Saadoon and Mufdhi, Application no. 61498/08, March 2, 2010, Paras. 119 and 126; see also P. Leach, Taking a Case to the European Court of Human Rights, 3rd ed. (Oxford: Oxford University Press, 2011), 170–171. Soering v. the United Kingdom, Para. 87; Artico v. Italy, Para. 33; Loizidou v. Turkey, March 23, 1995 (GC), Para. 72; McCann and others v. the United Kingdom, September 27, 1995 (GC), Para. 146. Tyrer v. the United Kingdom, Para. 31. Decker and Fresa, “Status of Conscientious Objection,” 399. Ülke v. Turkey, Application no. 39437/98, January 24, 2006. Prof. Kevin Boyle was a lawyer for Osman Murat Ü lke at the ECtHR. K. Boyle, “Conscientious Objection in International Law and the Osman Murat Ülke Case,” in Conscientious Objection: Resisting Militarized Society, ed. Ö. H. Çınar and Ç. Üsterci (London and New York: Zed Books, 2009), 217. Ülke v. Turkey, Para. 61. Ibid., Paras. 13–41. Ibid., Para. 48. Ibid., Para. 52. Ibid., Paras. 59–64. Ibid., Para. 62.

236 231. 232 . 233. 234. 235. 236. 237. 238. 239. 240. 241. 242 . 243.

244. 245. 246. 247.

248. 249. 250. 251. 252 . 253.

254. 255. 256. 257. 258.

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Brett and Townhead, 97. Ülke v. Turkey, Para. 64. Brett and Townhead, 96. Bayatyan v. Armenia , Application no. 23459/03, July 7, 2011 (GC). Bayatyan v. Armenia , October 27, 2009 (C). Ibid., Para. 8. Ibid., Paras. 10–40; Notably, the Alternative Service Act in Armenia was passed on December 17, 2003 and entered into force on July 1, 2004. Ibid., Para. 37. Ibid., Para. 46. Ibid., Para. 56. Ibid., Para. 63. Ibid. Ibid., 21–24. Judge Ann Power states that “[i]n finding no violation of Article 9, the majority, in my view, has failed to have sufficient regard to two important principles, namely, that the Convention is a ‘living instrument’ whose provisions must be interpreted in accordance with current legal standards and norms and that, notwithstanding the lawfulness of a permitted interference with a Convention right, the Court retains its supervisory role in assessing the proportionality of any measure taken” (ibid., 21, Para. 2). Ibid., 23, Para. 5. Ibid., Para. 6. See, for example, N. v. Sweden, Raninen and Autio v. Finland. Groppera Radio AG and Others v. Switzerland [Application no. 10890/84], March 28, 1990, Series A no. 173; Markt Intern Verlag GmbH and Klaus Beermann v. Germany [Application no. 10572/83], November 20, 1989, Series A no. 165; and Kokkinakis v. Greece, May 25, 1993, § 47, Series A no. 260-A. Groppera Radio AG and Others v. Switzerland , § 72; see also Barfod v. Denmark [Application no. 11508/85], February 22, 1989, Series A no 149. Kokkinakis v Greece, May 25, 1993, § 47, Series A no. 260–A. Bayatyan v. Armenia, October 27, 2009 (C), pp. 23, para. 7. The above footnotes nos. 247, 248, and 249 as cited in original. Ibid., Para. 6. Ibid., 23–24, Para. 7. See Metropolitan Church of Bessarabia and Others v. Moldova , no. 45701/99, §125, ECHR 2001–XII where the Court held that the mere assertion of a danger to national security did not absolve the state from indicating the justification for advancing such a claim. Bayatyan v. Armenia , October 27, 2009 (C), 23–24, Para. 7. The above footnote no. 253 as cited in the original. Ibid., Paras. 43, 44, 45, 51, and 52. Bayatyan v. Armenia , July 7, 2011 (GC), Paras. 85–91. Ibid., Para. 101. Ibid., Para. 98.

Notes 259. 260. 261. 262 . 263.

264. 265. 266. 267. 268. 269. 270. 271. 272 . 273. 274. 275. 276. 277. 278. 279. 280. 281. 282 . 283. 284. 285. 286. 287. 288. 289. 290. 291. 292 . 293. 294. 295. 296. 297. 298. 299.

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Ibid., Para. 102. Ibid., Para. 103. Ibid., Paras. 105–107. Ibid., Para. 109. See, mutatis mutandis, Campbell and Cosans v. the United Kingdom, February 25, 1982, §36, Series A no. 48, and, by contrast, Pretty v. the United Kingdom, no. 2346/02, § 82, ECHR 2002–III. Bayatyan v. Armenia , July 7, 2011 (GC), Para. 110. The above footnote no. 263 as cited in the original. Ibid., Para. 111. Ibid., Paras. 124–125. Arrowsmith v. UK, Para. 3. Bayatyan v. Armenia , July 7, 2011 (GC), Para. 117. Ibid. Ibid. Ibid., Para. 118. Ibid., Para. 121. Ibid., Para. 122. Ibid. Ibid., Para. 123. Ibid., Para. 124. Ibid., Para. 125. Ibid., Para. 124. Ibid., Para. 126. Ibid., Para. 112. Ibid., Para. 128. Ibid., 39, Para. 3. Ibid., 38, Para. 2. Erçep v. Turkey, Application no. 43965/04, November 22, 2011. Ibid., Para. 29. Ibid., Paras. 26 and 27. Ibid., Para. 28. Ibid., Para. 44. Ibid., Para. 46. Ibid., Para. 47. Ibid. Ibid., Para. 59. Ibid., Para. 58. Ibid., Para. 59. Ibid., Paras. 59, 63, 64, and 65. Ibid., Para. 60. Ibid., Paras. 58–64. Ibid., Para. 65. Ibid., Para. 66.

238 300. 301. 302 . 303. 304. 305. 306. 307. 308. 309. 310. 311. 312 . 313. 314. 315. 316. 317. 318. 319. 320. 321. 322 . 323. 324. 325. 326.

327. 328. 329. 330.

331.

332 . 333.

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Ibid., Paras. 68–69. Ibid., Para. 69. Ibid., Para. 71. Ibid., Para. 43. Bukharatyan v. Armenia , Application no. 37819/03, January 10, 2012; Tsaturyan v. Armenia , Application no. 37821/03, January 10, 2012. Fethi Demirta ş v. Turkey, Application no. 5260/07, January 17, 2012. Ibid., Paras. 6–67. Ibid., Paras. 94–125. Ibid., Para. 91. Ibid., Para. 89. Ibid., Para. 91. Ibid., Paras. 92 and 93. Ibid., Concuring opinion of Andrá s Sajó and Dragoljub Popović, 25. Savda v. Turkey, Application no. 42730/05, June 12, 2012. Ibid., Para. 5. Ibid., Paras. 13–34. Ibid., Para. 78. Ibid., Para. 80–85. Ibid., Para. 107–111. Ibid., Paras. 90–94. Ibid., Para. 96. Ibid., Para. 100. Tarhan v. Turkey, Application no. 9078/06, July 17, 2012. Ibid., Para. 5. Ibid., Paras. 41–62. Bayatyan v. Armenia , July 7, 2011 (GC), Para. 128. Erçep v. Turkey, Para. 65; Bukharatyan v. Armenia , Para. 49; Tsaturyan v. Armenia , Para. 45; Fethi Demirta ş v. Turkey, Para. 115; Savda v. Turkey, Para. 100; and Tarhan v. Turkey, Para. 62. Türmen, R., “Vicdani Ret, Artık Din ve Vicdan Özgürlüğü Kapsamında Değerlendiriliyor,” İzlem Special Issue (September 2011): 7. See, for example, Bayatyan, July 7, 2011 (GC), Para. 110; Erçep, Para. 54. Min-Kyu Jeong et. al. v. the Republic of Korea , Para. 7.3. D. Brett, “COMMENTARY: Bayatyan—a European Court judgment with an impact far beyond Armenia,” Forum 18, July 26, 2011, available at http:// www.forum18.org/Archive.php?article_id=1597 (accessed September 30, 2013). See, for example, Çağlar Buldu and others v. Turkey, Application no. 14017/08 (the final judgment has not been given by the ECtHR at the time of writing—October 2013). Brett, “COMMENTARY.” T. Hammarberg, “Judgments Issued by the European Court cannot be Ignored,” July 19, 2011, available at http://commissioner.cws.coe.int/tiki -view_blog_post.php?postId=154 (accessed September 30, 2013).

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334. Ö. H. Çınar, Avrupa İnsan Hakları Mahkemesi Kararlarının Türk Hukukuna Etkisi (İstanbul: İnsan Hakları Derneğ i İstanbul Şubesi Yay ınları, 2005), 113–128. 335. European Social Charter, ETS 35, adopted on October 18, 1961. 336. R. Brillant, “The Supervisory Machinery of the European Social Charter: Recent Development and their Impact,” in Social Rights in Europe, ed. G. de Búrca and B. de Witte (New York: Oxford University Press, 2005), 31–44. 337. The European Committee is composed of independent experts and it fulfills two main roles. The first role is to rule on the conformity of the situation in States with the European Social Charter, the 1988 Additional Protocol, and the Revised European Social Charter (Rule 2(1) of the Rules of the European Committee of Social Rights). The second role is to adopt conclusions made through the framework of the reporting procedure as well as any decisions arrived at under the collective complaints procedure (Rule 2(2) of the Rules of the European Committee of Social Rights). 338. Quaker Council for European Affairs v. Greece, Complaint no. 8/2000, April 25, 2001 (Decision on the merits). 339. Article 1 (The right to work) states: “With a view to ensuring the effective exercise of the right to work, the Contracting Parties undertake: 1. to accept as one of their primary aims and responsibilities the achievement and maintenance of as high and stable a level of employment as possible, with a view to the attainment of full employment; 2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon; 3. to establish or maintain free employment services for all workers; 4. to provide or promote appropriate vocational guidance, training and rehabilitation.” 340. When the applicant applied to the European Committee, alternative civilian service in Greece was 18 months longer than normal or reduced military service. Normal military service was 18 months in the army, 19 months in the air force and 21 months in the navy, whereas reduced military service was 12 months in the army, 6 months in the air force and 3 months in the navy. In other words, if a conscientious objector wanted to serve alternative civilian service, this service was last for a period of up to 39 months (For further information see Quaker Council for European Affairs v. Greece,April 25, 2001, paras. 8 and 25). 341. Quaker Council for European Affairs v. Greece, Complaint no. 8/2000, June 28, 2000, Para. 2 (Decision on the admissibility). 342. Quaker Council for European Affairs v. Greece, Complaint no. 8/2000, April 25, 2001, Para. 25. 343. Council of Europe, Committee of Ministers, Resolution no. ResChs(2002)3, March 6, 2002. 344. Council of Europe, “Conclusions of the European Committee of Social Rights,” available at http://www.coe.int/t/dghl/monitoring/socialcharter /conclusions/conclusionsyear_EN.asp (accessed September 30, 2013). 345. European Committee of Social Rights: Conclusions XVIII-1 (Greece) (2006), Articles 1, 12, 13, 16, and 19 of the Charter.

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346. Law 3257/29–7–04 and Ministerial Decision F.420/76/81249/S.227/09–09–04. For further information see Conclusions XVIII-1 (Greece), 6. 347. Conclusions XVIII-1 (Greece), 6. 348. European Committee of Social Rights: Conclusions 2008 (Revised)—vol. 1 (Albania, Andorra, Armenia, Azerbaijan, Belgium, Bulgaria, Cyprus, Estonia, Finland, France, Georgia, Ireland, Italy), 187. 349. Ibid., 230–231. 350. Ibid., 268. 351. Ibid., 365–366. 352 . Lord Lester of Herne Hill, “Introduction,” in An EU Charter of Fundamental Rights, ed. K. Feus (London: Federal Trust: 2000), 3 and T. Ahmed and I. J. Butler, “The European Union and Human Rights: An International Law Perspective,” European Journal of International Law 17 (2006): 771–801. 353. Treaty of Lisbon, OJ C 306 of December 17, 2007, adopted on December 13, 2007, entered into force on December 1, 2009. In fact, every EU Member State has ratified the European Convention on Human Rights, and in most Member States the Convention has been incorporated into domestic law. (J. Steiner and L. Woods, Textbook on EC Law, 8th ed. (Oxford: Oxford University Press, 2003), 160; see also Ahmed and Butler, “The European Union,” 772–775). 354. Feus, K. (ed.). An EU Charter of Fundamental Rights (London: Federal Trust, 2000), 3. 355. Ahmed and Butler, “The European Union,” 774–775. 356. Feus, 3. 357. Ibid., 4. Human rights have been adopted as “general principles” in European Community Law (Article 6 of the Treaty on EU; see also Steiner and Woods, Textbook on EC Law, 159; Feus, 4; Ahmed and Butler, “The European Union,” 776; H. C. Krüger, “The European Union Charter of Fundamental Rights and the European Convention on Human Rights: An Overview,” in The EU Charter of Fundamental Rights: Politics, Law and Policy, ed. S. Peers and A. Ward (Oxford and Portland, OR: Hart Publishing, 2004), xvii–xxvi). 358. Charter of Fundamental Rights of European Union, OJ C364/1 (2000). 359. Charter of Fundamental Rights of European Union is available at http:// www.europarl.europa.eu/charter/default_en.htm (accessed September 30, 2013); see also Steiner and Woods, Textbook on EC Law, 162–163. 360. Article 10 (Freedom of thought, conscience and religion) states: “1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance; 2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.” 361. The Charter of Fundamental Rights of the European Union—Explanations Relating to the Complete Text of the Charter, Office for Official Publications for the European Communities: Luxembourg, October 11, 2000, 12.

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362. European Union Network of Independent Experts on Fundamental Rights (June 2006), “Commentary of the Charter of Fundamental Rights of the European Union,” CFR-CDF, 106. 363. Explanations Relating to the Charter of Fundamental Rights of the European Union (2007/C 303/02), OJ C 303/17, December 14, 2007, 13. 364. The phrase “in accordance with the national laws” (or a similar phrase) is not only to be found in this article but also in other articles of the Charter, such as Articles 9, 14, 16, 27, 28, 30, 34, 35, 41, and 45. For further information see A. J. Menéndez, “The Sinews of Peace: Rights to Solidarity in the Charter of Fundamental Rights of the European Union,” Ratio Juris 16 (2003): 385. 365. There are five candidate members of the EU (Iceland, Montenegro, Serbia, The Former Yugoslav Republic of Macedonia, and Turkey) at the time of writing (November 2013). There is no army in Iceland. There is no compulsory military service in Montenegro, Serbia, and the Former Yugoslav Republic of Macedonia. Turkey has compulsory military service, but the right to conscientious objection is not recognized. For further information see Ö. H. Ҫınar, “A View on International Implementation of the Right to Conscientious Objection,” in Ҫınar and Üsterci (2009), 184; D. Brett, 2013, “Annual Report: Conscientious Objection to Military Service in Europe 2013,” European Bureau for Conscientious Objection: Brussels, 44 366. Article 21 (Nondiscrimination) states: “1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited; 2. Within the scope of application of the Treaty establishing the European Community and of the Treaty on European Union, and without prejudice to the special provisions of those Treaties, any discrimination on grounds of nationality shall be prohibited.” Article 52 (Scope of guaranteed rights) states: “1. Any limitation on the exercise of the rights and freedoms recognised by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others; 2. Rights recognised by this Charter which are based on the Community Treaties or the Treaty on European Union shall be exercised under the conditions and within the limits defined by those Treaties; 3. In so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.” Article 53 (Level of protection) states: “Nothing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised, in their respective fields of application, by

242

367. 368. 369.

370. 371. 372 . 373.

374. 375. 376. 377. 378. 379. 380. 381. 382 .

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Union law and international law and by international agreements to which the Union, the Community or all the member States are party, including the European Convention for the Protection of Human Rights and Fundamental Freedoms, and by the member States’ constitutions.” The Treaty of Lisbon was signed on December 13, 2007, by the Heads of State and Governments of the 27 Member States. European Union (December 1, 2009), “Explaining the Treaty of Lisbon,” MEMO/09/531. Amendments to the Treaty on European Union (Treaty of Maastricht, OJ C 191 of 29 July 1992, adopted on 7 February 1992, entered into force on 1 November 1993) and the Treaty on the Functioning of the European Union. However, three Member States (United Kingdom, Poland and Czech Republic) opted out of the Charter of Fundamental Rights of the European Union by means of the Protocol. This means that the Charter, as interpreted by the European Court of Justice, will not apply fully to those member countries. Article 6(1) of the Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Union states that “the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.” See also Article 51(1) of the Charter stating that “The provisions of this Charter are addressed to the institutions and bodies of the Union with due regard for the principle of subsidiary and to the member States only when they are implementing Union law. They shall therefore respect the rights, observe the principles and promote the application thereof in accordance with their respective powers.” European Parliament, Resolution on Conscientious Objection, February 7, 1983, Doc.1–546/82. Ibid., Para. 2. Ibid., Para. 3. European Parliament, Resolution on Conscientious Objection and Alternative Civilian Service, October 13, 1989, Doc. A3–15/89, 1989 O. J. (C 291) 122, 11 (1989), the second sentence of the preambular paragraph. Decker and Fresa, “Status of Conscientious Objection,” 416. European Parliament, Resolution doc. A3–15/89, 1989 O. J. (C 291) 122, 11 (1989), Para. G/4. Ibid., Para. B and G/1. Ibid., Paras. G/9 and G/11. Ibid., Paras. G/3, G/5, G/6, G/7, G/10. Ibid., Para. G/11. European Parliament, Resolution on Conscientious Objection in the Member States of the Community, January 19, 1994, Doc. O. J. (C 44) 103. Ibid., Para. F/9. Ibid., Para. F/4.

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383. Ibid., Para. F/14. 384. European Parliament Resolution Report (September 13, 2006), 2006/2118(INI), Para. 37. 385. Organisation of Security and Cooperation in Europe and Office for the Democratic Institutions and Human Rights (2005), “OSCE Human Dimension Commitments: Thematic Compilation,” 2nd ed., vol. II, OSCE Office for Democratic Institutions and Human Rights: Warsaw, xv. 386. Ibid., xv, xvi. 387. Organisation of Security and Cooperation in Europe and Office for the Democratic Institutions and Human Rights (2008), “Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel,” OSCE Office for Democratic Institutions and Human Rights: Warsaw, 11. 388. OSCE (2005), xvi. 389. CSCE, Document of the Copenhagen Meeting on the Human Dimension of the CSCE, June 29, 1990, Para. 18.1. 390. Ibid., Para. 18.4. 391. Ibid., Para. 18.5. 392 . OSCE (2005), xviii. 393. See, for example, Concluding Observations of the Human Rights Committee: Lithuania (UN Doc. CCPR/CO/80/LTU of May 4, 2004), Para. 17. 394. Tyrer v. the United Kingdom, Para. 31. 395. Council of Europe, Parliamentary Assembly, Opinion no. 222 (2000) about Azerbaijan’s application for membership of the Council of Europe; see also European Commission (November 14, 2009), “2009 Regular Report on Turkey’s Progress Towards Accession,” SEC(2009)1334/3, 10 and European Commission (November 9, 2010), “2010 Regular Report on Turkey’s Progress Towards Accession,” SEC(2010)1327, 24; European Commission (October 12, 2011), “2011 Regular Report on Turkey’s Progress Towards Accession,” SEC(2011)1201, 31. 396. As explained by intervening third parties in Bayatyan v. Amenia , “[t]he purpose of Article 4(3) is clear. It is to exclude certain activities from the prohibition of forced labour under Article 4 stating ‘For the purpose of this article the term forced or compulsory labour shall not include’, and specifically to ensure that alternative service for conscientious objectors is not per se prohibited as forced labour.” The third parties also underline that “[t]he UK, who at the time of the Convention’s drafting had both conscription and alternative service, proposed excluding from the definition of forced labour: ‘any service of a military character or service in the case of conscientious objectors exacted in virtue of compulsory military service laws’ (Amendments to Articles 1, 2, 4, 5, 6, 8 and 9 of the Committee’s Preliminary Draft Proposed by the Expert of the United Kingdom, Comm. Of Experts, Doc. CM/WP 1 (50) 2; A 915 (6 March 1950)). By contrast, in the earlier Forced Labour Convention, No. 29, 39 UNTS 55, adopted on 28 June 1930, entered into force on 1 May 1932; Article 2 includes only an exception for military service.” (cited in Amnesty International et al., “Third Party Intervention,” Para. 29).

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397. Bayatyan v. Armenia, July 7, 2011 (GC), Para. 109. 398. T. Melish, Protecting Economic, Social and Cultural Rights in the InterAmerican Human Rights System: A Manual on Presenting Claims (New Haven: Center for International Human Rights and Yale Law School, 2002), 10. 399. For information on the drafting process of Article 12 of the AmrCHR see Organization of American States Inter-American Yearbook on Human Rights 1968 (Washington DC: General Secretariat of the Organization of American States, 1978), 65–153; see also Hammer, The International Human Right, 54–57; Takemura, International Human Right, 112–114. 400. At the present time, 25 out of 35 Organization of American States’ (OAS) Member States have ratified the Convention (See the full list of the members of the American Convention on Human Rights on OAS official website, at available at http://www.oas.org/juridico/english/sigs/b-32.html (accessed September 30, 2013)). 401. Inter-American Commission on Human Rights, Inter-American Yearbook on Human Rights 1985 (Dordrecht/Boston/Lancaster: Martinus Nijhoff, 1987), 16. 402 . In 1959, the Inter-American Council of Jurists was appointed by the Ministers of Foreign Affairs to submit a first draft of the Convention. For further information see also Hammer, The International Human Right, 54–55. 403. de Abranches, D. (1968), “Comparative Study of UN Covenant on Civil and Political Rights and on Economic Social and Cultural Rights and of the Draft Inter-American Convention on Human Rights,” OEA/Ser. L/V/II.19 Doc. 18, 282; for further discussion on these changes see also Hammer,The International Human Right, 55. 404. Hammer,The International Human Right, 55. 405. American Convention on Human Rights’ preamble, Para. 1. 406. According to Article 1(1), “The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, colour, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.” 407. Article 13(1) provides that “Everyone has the right to freedom of thought and expression.” 408. Article 6 (Freedom from Slavery) (emphasis added): “1. No one shall be subject to slavery or to involuntary servitude, which are prohibited in all their forms, as are the slave trade and traffic in women. 2. No one shall be required to perform forced or compulsory labour. This provision shall not be interpreted to mean that, in those countries in which the penalty established for certain crimes is deprivation of liberty at forced labour, the carrying out of such a sentence imposed by a competent court is prohibited. Forced labour shall not adversely affect the dignity or the physical or intellectual capacity of the prisoner.

Notes

409.

410. 411.

412 .

413. 414. 415.

416. 417.

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3. For the purposes of this article, the following do not constitute forced or compulsory labour: a. work or service normally required of a person imprisoned in execution of a sentence or formal decision passed by the competent judicial authority. Such work or service shall be carried out under the supervision and control of public authorities, and any persons performing such work or service shall not be placed at the disposal of any private party, company, or juridical person; b. military service and, in countries in which conscientious objectors are recognized, national service that the law may provide for in lieu of military service; c. service exacted in time of danger or calamity that threatens the existence or the well-being of the community; or d. work or service that forms part of normal civic obligations”. Doc. 14 (English), October 17, 1969, Original: English, “Comments of the International Labour Office on the Draft Inter-American Convention on Human Rights,” in Human Rights: The Inter-American System, R. E. Norris, and T.Buergenthal, (New York: Oceana Publications, 1982), 209; see also Takemura, International Human Right, 113–114. Subsequently, the Chairman of the Draft Committee appointed a working group (composed of the delegations from Argentina, Guatemala, Honduras and Costa Rica) tasked with submitting a report including comments of the ILO (Norris and Buergenthal, Human Rights, 209; Takemura, International Human Right, 114). Before the American Convention on Human Rights, the Commission was an institution of the Organization of American States. Charter of the Organization of American States, 119 UNTS 3, adopted on April 30, 1948, entered into force on December 13, 1951. For these additional roles see Article 111 of the OAS Charter and Article 41 of the AmCHR. In 1979, the OAS General Assembly adopted Resolution no. 448 of October 31, 1979, which approved the Statute of the Court. According to Article 1 of the Statute, the Court is defined as “an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights.” As regards the advisory jurisdiction of the Court, Article 64 of the Convention provides that any “Member States of the Organization may consult the Court regarding the interpretation of this Convention or of other treaties concerning the protection of human rights in the American states.” Loren Laroye Riebe Star v. Mexico, Case no. 11.610, April 13, 1999, Para. 98. The Last Temptation of Christ (Olmedo-Bustos et. al.) v. Chile, Case no. 11.803, February 5, 2001, Para. 79. Inter-American Commission on Human Rights (1998), “Annual Report 1997,” OEA/Ser.L/V/II.98, Doc. 6 Rev., Chapter VII, Para. 10, 1053–4 and Inter-American Commission on Human Rights (1999), “Annual Report 1998,” OEA/Ser.L/V/II.102 Doc. 6 Rev., 1194. Annual Report 1997, Para. 10. CHR has recognized conscientious objection to military service as a legitimate exercise of the freedom of thought, conscience, and religion (CHR, 51 Session, E-CN.4–1995.L82-Rev.1, March 7, 1995).

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418. Annual Report 1997, Para. 10. 419. Ibid. 420. Brems, E., A Commentary on the United Nations Convention on the Rights of the Child: Article 14: The Rights to Freedom of Thought, Conscience and Religion (The Hague: Martinus Nijhoff, 2006), 17. For further discussion see also Takemura, International Human Right, 115. 421. Cristi án Daniel Sahli Vera et. al. v. Chile, Case no. 12.219, Report no. 43/05, March 10, 2005. 422 . Ibid., Para. 6. 423. Ibid., Para. 7. 424. Ibid., Para. 8. 425. Ibid., Para. 2. 426. Ibid., Para. 38. 427. Ibid., Para. 96. 428. Ibid., Para. 38. 429. Ibid. 430. Ibid., Paras. 32 and 85. 431. Ibid., Para. 85. 432 . Ibid., Para. 86. 433. Ibid. 434. Ibid., Para. 87. 435. Ibid., Paras. 95–96. 436. Ibid., Para. 97. 437. Ibid., Para. 100. 438. Taylor, P. M. Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2005), 150; Boyle, “Conscientious Objection in International Law,” 217; see also Commissioner Liddy’s opinion in the case of European Commission of Human Rights (Tsirlis and Koulompas v. Greece, Application nos. 19233/91 and 19234/91, Eur. Comm’n H.R.’s Report, March 7, 1996, 25). 439. See Article 31 of the Vienna Convention on the Law of Treaties; see also Tyrer v. the United Kingdom, Para. 31. 440. “Annual Report 1997,” Para. 10. 441. See, for example, Bayatyan v. Armenia , October 27, 2009 (C) and Ülke v. Turkey. 442 . Alfredo Díaz Bustos v. Bolivia , Case no. 14/04, October 13, 2004 (Admissibility decision); see also Alfredo Díaz Bustos v. Bolivia, October 27, 2005 (Friendly settlement). 443. Ibid., October 27, 2005 (Friendly settlement), Para. 2. 444. Among other arguments the Bolivian Constitutional Court held that:It has not been institutionalized in law; in other words, no law has been enacted that makes conscientious objection grounds for exemption from compulsory military service [ . . . ] Therefore, as conscientious objection is neither established nor regulated in the State’s legal system, persons of military service

Notes

445. 446.

447. 448. 449. 450. 451. 452 . 453. 454. 455.

456.

457.

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age cannot invoke such a right as grounds for exemption from compulsory military service; correspondingly, Armed Forces officials cannot entertain a request from persons claiming a conscientious objector exemption ( Alfredo Díaz Bustos v. Bolivia , October 27, 2005 (Friendly settlement), footnote no. 4). Alfredo Díaz Bustos v. Bolivia, October 27, 2005 (Friendly settlement), Para. 15. The Bolivian State, represented by the Ministry of Defence, agreed in this case (ibid., Agreement I (c) (d) and (e)) that:c) at the time of presentation of the service record, to issue a Ministerial Resolution stipulating that in the event of an armed conflict Alfredo Díaz Bustos, as a conscientious objector, shall not be sent to the battlefront nor called as an aide; d) in accordance with international human rights law, to include the right to conscientious objection to military service in the preliminary draft of the amended regulations for military law currently under consideration by the Ministry of Defense and the armed forces; e) together with the Deputy Ministry of Justice, to encourage congressional approval of military legislation that would include the right to conscientious objection to military service. Alfredo Díaz Bustos v. Bolivia , October 27, 2005 (Friendly settlement), Para. 19. Ibid., Para. 20. Takemura, International Human Right, 116–117. Xavier Alejandro León Vega v. Ecuador, Case no. 278–02, March 2, 2006, Para. 2. Cristi án Daniel Sahli Vera et. al. v. Chile, Para. 86. Xavier Alejandro León Vega v Ecuador, Para. 31. The above footnote no. 451 as cited in original. Ibid., Para. 32. Ibid., Para. 28. Only Costa Rica, Dominica, Grenada, Haiti, and Panama, St Kitts and Nevis, St Lucia, St Vincent and the Grenadines have no armed forces (C. Barbey, La Non-Militarisation et les Pays Sans Armée: Une R é alité (Switzerland: APRED, 2001). Thirteen out of 35 OAS members have compulsory military service. The remaining countries maintain a professional army (National Human Rights Commission of Korea (December 2005), “A Research Report on the Issue of Conscientious Objection to Military Service,” National Human Rights Commission of Korea: Seoul. See also Horeman and Stolwijk (1998, updated in 2005)) ; Brett, “Recruitment and Conscientious Objection,” 5, 8–9, 19, 30–33, 44–45, 49–50.. The right to conscientious objection is recognized in the following countries: Argentina (available for conscientious objectors if conscription reintroduced), Brazil, Ecuador, Guyana, Paraguay, and United States of America; Article 2: “Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by legislative or other provisions, the States

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Parties undertake to adopt, in accordance with their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary to give effect to those rights or freedoms.” 458. Christian Daniel Sahli Vera et. al. v Chile, Para. 38.

Conclusion 1. Charter of Fundamental Rights of the European Union, 2000/C 364/01, OJ C 83 of March 30, 2010, adopted on December 7, 2000 and IberoAmerican Convention on Young People’s Rights, adopted on October 10–11, 2005, entered into force March 1, 2008. Article 10(2) of the Charter of Fundamental Rights of the European Union states that “The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.” Article 12 of the 2008 IberoAmerican Convention on Young People’s Rights also states that “1) Youth have the right to make conscientious objection towards obligatory military service. 2) The States Parties undertake to promote the pertinent legal measures to guarantee the exercise of this right and advance in the progressive elimination of the obligatory military service. 3) The States Parties undertake to assure youth under 18 years of age that they shall not be called up or involved, in any way, in military hostilities.” 2 . Freedom of thought, conscience and religion is recognized in the following human rights documents: Article 18 of the Universal Declaration of Human Rights (UDHR); Article 18 of the International Covenant on Civil and Political Rights (ICCPR); Article 9 of the European Convention on Human Rights (ECHR); Article 12 of the American Convention on Human Rights (AmrCHR); and Article 8 of the African Charter on Human and Peoples’ Rights (AfrCHR). 3. Kokkinakis v. Greece, May 25, 1993, Application no. 14307/88, Para. 31. 4 . The three freedoms: of thought, conscience and religion are grouped together in most human rights texts. However, in the AmrCHR the freedom of thought is omitted (Articles 12 and 13). This freedom is protected with freedom of expression. For further information see E. Brems, A Commentary on the United Nations Convention on the Rights of the Child: Article 14: The Rights to Freedom of Thought, Conscience and Religion (The Hague: Martinus Nijhoff, 2006), 3–5; L. M. Hammer, The International Human Right to Freedom of Conscience: Some Suggestions for Its Development and Application (Dartmouth: Ashgate, 2001), 28–71; B. G. Tahzib, Freedom of Religion or Belief Ensuring Effective International Legal Protection (The Hague/Boston/London: Martinus Nijhoff, 1996), 70–94; and M. D. Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge University Press, 1997), 194–226, 262–341. 5. Freedom of thought, conscience and religion is recognized in the following human rights documents: Article 18 of the Universal CHR, Resolution no. 1998/77, April 22, 1998.

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6 . Article 18 of the ICCPR and Article 9 of the ECHR, include a specific limitation clause concerning the freedom to manifest one’s religion. However, the UDHR (Article 29 and 30) contain general limitation clauses. 7. C. Evans, Freedom of Religion under the European Convention on Human Rights (Oxford: Oxford University Press, 2003), 133–167; M. D., Evans, Religious Liberty, 315–345; J. Murdoch, Freedom of Thought, Conscience and Religion: A Guide to the Implementation of Article 9 of the European Convention on Human Rights (Strasbourg: Human Rights Handbooks no. 9, Council of Europe, 2007), 13–16; P. M. Taylor, Freedom of Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press, 2005), 115–338; Hammer, The International Human Right , 268. 8 . See, for example, Yeo-Bum Yoon and Mr Myung-Jin Choi v. the Republic of Korea , Communication nos. 1321/2004 and 1322/2004, November 3, 2006, UN Doc. CCPR/C/88/D/1321–1322/2004; Eu-min Jung, Tae-Yang Oh, Chang-Geun Yeom, Dong-hyuk Nah, Ho-Gun Yu, Chi-yun Lim, Choi Jin, Taehoon Lim, Sung-hwan Lim, Jae-sung Lim, and Dong-ju Goh v. the Republic of Korea, Communications Nos. 1593 to 1603/2007, March 23, 2010, UN Doc. CCPR/C/98/D/1593–1603/2007. 9. See Min-Kyu Jeong et. al. v. the Republic of Korea, Communications nos. 1642 to 1741/2007, April 27, 2011, UN Doc. CCPR/C/101/D/1642–1741/2007; Cenk Atasoy and Arda Sarkut v. Turkey, Communication nos. 1853/2008 and 1854/2008, March 29, 2012, UN Doc. CCPR/C/104/D/1853–1854/2008. 10. See, for example, Bayatyan v. Armenia , Application no. 23459/03, July 7, 2011 (GC); Erçep v. Turkey, Application no. 43965/04, November 22, 2011; Bukharatyan v. Armenia , Application no. 37819/03, January 10, 2012; Tsaturyan v. Armenia , Application no. 37821/03, January 10, 2012; Fethi Demirta ş v. Turkey, Application no. 5260/07, January 17, 2012; Savda v. Turkey, Application no. 42730/05, June 12, 2012 and Tarhan v. Turkey, Application no. 9078/06, July 17, 2012. 11. CHR, Resolution no. 1998/77, the fourth sentence of preambular paragraph. 12 . Concluding observations of the Human Rights Committee: Finland (UN Doc. CCPR/CO/82/FIN of December 2, 2004), Para. 14. 13. PACE, Recommendation no. 1518 (2001), May 23, 2001, Para. 5(i); European Parliament, Resolution on Conscientious Objection and Alternative Civilian Service, October 13, 1989, Doc. A3–15/89, 1989 O. J. (C 291) 122, 11 (1989), Para. G/1. 14. Council of Europe, Committee of Ministers, Recommendation no. (2010) 4, February 24, 2010; PACE, Recommendation no. 1518 (2001), Para. 5(ii). 15. CHR, Resolution no. 1998/77, Para. 8; PACE, Recommendation no. 1518 (2001), Para. 5(iii); Concluding observations of the Human Rights Committee: Paraguay (UN Doc. CCPR/C/PRY/CO/2 of April 24, 2006), Para. 18; Council of Europe, Committee of Ministers, Recommendation no. R (87)8, April 9, 1987, Para. 3.

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16. European Parliament Resolution, February 7, 1983, Doc.1–546/82, Para. 3; European Parliament Resolution, October 13, 1989, Para. A; CHR, Resolution no. 1998/77, Para. 2. 17. UN Working Group on Arbitrary Detention, Opinion no. 36/1999 (Turkey), Opinion no. 24/2003 (Israel), November 28, 2003; see also HRC, General Comment no. 32, “Right to Equality before Courts and Tribunals and to a Fair Trial,” UN Doc. CCPR/C/GC/32, August 23, 2007, Paras. 54–55. 18. The reports of the Special Rapporteur on freedom of opinion and expression, E/CN.4/2000/63/Add.1, Para. 125, and the report of the Working Group on Arbitrary Detention, Report no. E/CN.4/2001/14, Recommendation no. 2, December 20, 2000, Para. 93. 19. Council of Europe, Commitee of Ministers, Recommendation no. R (87)8, Para. 7; CHR, Resolution no. 1998/77, Para. 3. 20. Commitee of Ministers, Recommendation no. R (87)8, Para. 6. 21. Concluding observations of the Human Rights Committee: Greece (UN Doc. CCPR/CO/83/GRC of April 25, 2005), Para. 15. 22 . Council of Europe, Commitee of Ministers, Recommendation no. R (87)8, Para. 9; PACE, Recommendation no. 1518 (2001), Para. 5(iv). 23. CHR, Resolution no. 1998/77, Para. 4. 24. See, for example, Frédéric Foin v. France, Communication no. 666/1995, November 9, 1999, UN Doc. CCPR/C/D/666/1995, Para. 10.3. 25. HRC, General Comment no. 22, Para. 11. 26. CHR, Resolution no. 1998/77, Para. 6. 27. Ibid., Para. 7.

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O’Donnell, J. M. The Canons of the First Council of Arles, 314 A.D. Washington DC, USA: Catholic University of American Press, 1961. Ouguergouz, F. The African Charter Human and People’s Right: A Comprehensive Agenda for Human Dignity and Sustainable Democracy in Africa. The Hague: Martinus Nijhoff, 2003. Öktem, A. E. Uluslararası Hukukta İnanç Özgürlüğü. Ankara: Liberte Yay ınları, 2002. Philliomore, W. Three Centuries of Treaties of Peace. London: John Murray, 1917. Prasad, D. War is a Crime against Humanity: The Story of War Resisters’ International . London: War Resisters’ International, 2005. Quaker Peace and Social Witness. Faithful Deeds: A Rough Guide to the Quaker Peace Testimony. London: Quaker Books, 2002. Rae, J. Conscience and Politics: The British Government and the Conscientious Objector to Military Service 1916–1919. London: Oxford University Press, 1970. Ramsey, P. War and the Christian Conscience. Durham, NC: Duke University Press, 1961. Rawls, J. A Theory of Justice. Boston, MA: Harvard University Press, 1971. Redslob, R. Historie des Grands Principes du Droit des Gens Depuis l’antiquité Jusqu’ à la veille de la Grande Guerre. Paris: Rouseeau et Cie, 1923. Rehman, J. International Human Rights Law, 2nd ed. Harlow: Pearson, 2010. Richards, D. A. J. Conscience and the Constitution: History, Theory, and Law of the Recontructions Amendments. Princeton: Princeton University Press, 1993. Robertson, A. H. Collected Edition of the “Travaux Préparatoires’ of the European Convention on Human Rights (CETP), vol. I–VIII, Preparatory Commission of the Council of Europe, Committee of Ministers, Consultative Assembly, May11–September 8, 1949. The Hague: Martinus Nijhoff, 1975. Robertson, A. H. and J. G. Merrills. Human Rights in Europe: A Study of the European Convention on Human Rights, 3rd ed. Cambridge: Grotius Publications Ltd., 1993. Russell, B. On Civil Disobedience. London: National Youth Campaign for Nuclear Disarmament, 1961. Saint Augustine, (426 AD), The City of God Against The Pagans [De Civitate Dei Contra Paganos], With an English Translation by William M. Green, vol. VI, Book: XIX. Boston, MA: W. Heinemann, 1963. Samnoy, A. The Universal Declaration of Human Rights: Human Rights as International Consensus. Norway: Berger Print, 1993. Schinkel, A. Conscience and Conscientious Objections. Amsterdam: Amsterdam University Press, 2006. Selek, P. Barışamadık. İstanbul: İthaki Yay ıncı lı k, 2004. Sibley, M. Q. and P. E. Jacob. Conscription of Conscience: The American State and the Conscientious Objector 1940–1947. New York: Cornell University Press, 1952. Sinclair, I. M. The Vienna Convention on the Law of Treaties. Manchester: Manchester University Press, 1984.

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Smock, D. R. (ed.). Religious Perspectives on War Christians, Muslim and Jewish Attitude Toward Force. Washington, DC: United States Institute of Peace Press, 2002. Sohn, L. and T. Buergenthal (eds.). Basic Documents on International Protection of Human Rights. Indianapolis: The Bobbs-Merrill Company, 1973. Soysal, Y. N. Limits of Citizenship: Migrants and Postnational Membership in Europe. Chicago and London: University of Chicago Press, 1994. Steiner, J. and L. Woods. Textbook on EC Law, 8th ed. Oxford: Oxford University Press, 2003. Stoker, D., F. C. Schneid, and H. D. Blanton (eds.). Conscription in the Napoleonic Era: A Revolution in Military Affairs?. New York: Routledge, 2008. Stroup, H. H. The Jehovah’s Witnesses. New York: Russell and Russell, 1967. Sudre, F. Droit International et Européen Des Droits de l’Homme. Paris: PUF, 1989. Tahzib, B. G. Freedom of Religion or Belief Ensuring Effective International Legal Protection. The Hague/Boston/London: Martinus Nijhoff, 1996. Takemura, H. International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders. Heidelberg: Springer, 2008. Taylor, C. Source of the Self: The Making of the Modern Identity. Cambridge: Cambridge University Press, 1989. Taylor, P. M. Freedom of Religion: UN and European Human Rights Law and Practice. Cambridge: Cambridge University Press, 2005. Thoreau, H. D. On the Duty of Civil Disobedience. Minneapolis: Filiquarian Publishing, LLC, 2007. Tolstoy, L. The Law of Love and the Law of Violence. New York: Rudolph Field, 1948. Tucker, S. C. (ed.). The Encyclopaedia of World War I—A Political, Social, and Military History. Santa Barbara, CA: ABC-CLIO, 2005. United States Selective Service System. Conscientious Objection. Selective Service Monograph, No. 11. GPO: Washington, DC, 1950. Vagts, A. A History of Militarism Civilian and Military. New York: The Free Press, 1959. van Dijk, P. and G. J. H. Van Hoof. Theory and Practice of the European Convention on Human Rights, 3rd ed. Deventer: Kluwer Law and Taxation, 1998. Verduin, L. That First Amendment and the Remnant. Sarasota, FL: Christian Hymnary, 1998. Viljoen, F. International Human Rights Law in Africa. Oxford: Oxford University Press, 2007. von Harnack, A. Militia Christi: die Christliche Religion und der Soldatenstand in den Ersten Drei Jahrhunderten. Tübingen: Mohr (Paul Siebeck), 1905. Walzer, M. Obligations: Essays on Disobedience, War and Citizenship. Cambridge: Cambridge University Press, 1970. Weissbrodt, D. and de la C. Vega. International Human Rights Law; An Introduction. Pennsylvania: University of Pennsylvania Press, 2007.

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Book Chapters Boyle, K., “Freedom of Conscience, Pluralism and Tolerance: Freedom of Conscience in International Law.” In Freedom of Conscience, Council of Europe, 37–53. Strasbourg: Council of Europe, 1993. ———. “Freedom of Religion in International Law.” In Religion, Human Rights and International Law, edited by J. Rehman and S. C. Breau, 23–51. Martinus Nijhoff Publishers: The Hague, 2007. ———. “Conscientious Objection in International Law and the Osman Murat Ü lke Case.” In Conscientious Objection: Resisting Militarized Society, edited by Ö. H. Çınar and C . Üsterci, 212–224. London and New York: Zed Books, 2009. Brett, R., “International Standards on Conscientious Objection to Military and Alternative Service.” In Conscientious Objection: Resisting Militarized Society, edited by Ö. H. Çınar and C. Üsterci, 198–205. London and New York: Zed Books, 2009. Brett, R. and Townhead, L., “Conscientious Objection to Military Service.” In Strategic Visions for Human Rights—Essays in Honour of Professor Kevin Boyle, edited by G. Gilbert, F. Hampson, and C. Sandoval, 91–107. London and New York: Routledge, 2010. Brillant, R., “The Supervisory Machinery of the European Social Charter: Recent Development and their Impact.” In Social Rights in Europe, edited by G. de Búrca and B. de Witte, 31–44. New York: Oxford University Press, 2005. Bröckling, U., “Modası Geçmiş Sava ş, Askerlerin Geleceğ i ve Antimilarizmin Perspektifleri.” In Anarşizmin Bugünü, edited by H-J. Değen, 141–162. İstanbul: Ayrınt ı Yay ınları, 1999. Bröckling, U., “Sand in the Wheels? Conscientious Objection at the Turn of the Twenty-First Century.” In Conscientious Objection: Resisting Militarized Society, edited by Ö. H. Çınar and C. Üsterci, 53–60. London and New York: Zed Books, 2009. Chambers, J. W., “Conscientious Objectors and the American State from Colonial Times to the Present.” In The New Conscientious Objection: From Sacred to Secular Resistance, edited by C. C. Moskos and J. W. Chambers, 23–46. Oxford: Oxford University Press, 1993. Çınar, Ö. H., “A View on International Implementation of the Right to Conscientious Objection.” In Conscientious Objection: Resisting Militarized Society, edited by Ö. H. Çınar and C. Üsterci, 183–197. London and New York: Zed Books, 2009. Eberly, D. J., “Alternative Service in a Future Draft.” In The New Conscientious Objection: From Sacred to Secular Resistance, edited by C. C. Moskos and J. W. Chambers, 57–64. Oxford: Oxford University Press, 1993. Evans, M. D., “The Evolution of Religious Freedom in International Law: Present State and Perspectives.” In International Protection of Religious Freedom, edited by J.-F. Flauss, 15–56. Bruxelles: Bruylant, 2002.

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Fitzpatrick, M., “Enlightenment and Conscience.” In Religious Conscience, the State and the Law: Historical Contexts and Contemporary Significance, edited by J. McLaren and H. Coward, 46–61. New York: State University of New York Press, 1999. Forbes, B., “Conscientious Objection to Taxation.” In Freedom of Conscience, edited by Council of Europe, 124–128. Strasbourg: Council of Europe, 1993. ———. “Scope and Limits of Conscientious Objections: Conscientious Objection to Taxation.” In Freedom of Conscience, edited by Council of Europe, 124–128. Strasbourg: Council of Europe, 1993. Greenawalt, K., “Accommodation to Selective Conscientious Objection: How and Why.” In Selective Conscientious Objection Accommodating Conscience and Security, edited by Jr. M. F. Noone, 7–23. Boulder, San Francisco and London: Westview, 1989. Gunn, T. J., “Adjudicating Rights of Conscience Under the European Convention on Human Rights.” In Religious Human Rights in Global Perspective Legal Perspective, edited by J. van der Vyver and J. Witte 305–330. The Hague: Martinus Nijhof, 1996. K ı lınç, N. T., “The Morals and Politics of Conscientious Objection, Civil Disobedience and Anti-militarism.” In Conscientious Objection: Resisting Militarized Society, edited by Ö. H. Çınar and C. Üsterci, 61–72. London and New York: Zed Books, 2009. Krüger, H. C., “The European Union Charter of Fundamental Rights and the European Convention on Human Rights: An Overview.” In The EU Charter of Fundamental Rights: Politics, Law and Policy, edited by S. Peers, and A. Ward, xvii–xxvi. Oxford and Portland Oregon: Hart Publishing, 2004. Liskofsky, S., “The UN Declaration on the Elimination of Religious Intolerance and Discrimination: Historical and Legal Perspectives.” In Religion and the State: Essays in Honour of Leo Pfeffer, edited by Jr. J. E. Wood, 441–457. Waco, Texas: Baylor University Press, 1985. Mayer, P., “The Trial of Maximilianus.” In The Pacifist Conscience, edited by P. Mayer, 328–329. London: Rupert Hart-Davis Ltd, 1966. Moskos, C. C. and J. W. Chambers, “Introduction.” In The New Conscientious Objection: From Sacred to Secular Resistance, edited by C. C. Moskos and J. W. Chambers, 3–20. Oxford: Oxford University Press, 1993. Murdoch, A., “A Crucible for Change: Enlightenment in Britain.” In The Enlightenment World , edited by M. Fitzpatrick, P. Jones, C. Knellwolf, and I. McCalman, 104–116. London and New York: Routledge, 2004. Partsch, K. J., “Freedom of Conscience and Expression, and Political Freedoms.” In The International Bill of Rights, edited by L. Henkin, 209–245. New York: Columbia University Press, 1981. Remmelink, J., “General Report.” In Freedom of Conscience, edited by Council of Europe, 198–212. Strasbourg: Council of Europe, 1993. Rodotà, S., “Conscientious Objection to Military Service.” In Freedom of Conscience, edited by Council of Europe, 95–106. Strasbourg: Council of Europe, 1993.

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Saigol, R., “Militarizasyon, Ulus ve Toplumsal Cinsiyet: Şiddetli Çat ışma Alanları Olarak Kad ın Bedenleri.” In Vatan Millet Kadınlar, edited by A. G. Alt ınay, 227–259. İstanbul: İletişim Yay ınları, 2004. Scheinin, M., “Article 18.” In The Universal Declaration of Human Rights: A Common Standard of Achievement, edited by G. Alfredson and A. Eide, 379– 392. The Hague: Martinus Nijhoff, 1999. Schneider, F., “European Standards on Conscientious Objection and Alternative Service.” In Conscientious Objection: Resisting Militarized Society, edited by Ö. H. Çınar and C. Üsterci, 206–211. London and New York: Zed Books, 2009. Shaw, M. N., “Freedom of Thought, Conscience and Religion.” In The European System for the Protection of Human Rights, edited by R. St. J. Macdonald, F. Matscher, and H. Petzold, 445–463. Dordrecht and London: Kluwer Academic Publisher, 1993. Shelton, D., “Conscientious Objection to Religious Groups.” In International Protection of Religious Freedom, edited by J.-F. Flauss, 153–203. Bruxelles: Bruylant, 2002. Showalter, D., “1815–1864 Avrupa’nın Sava ş Tarzı.” In Dretnot, Tank ve Uç ak. Modern Çağda Sava ş Sanatı 1815–2000, edited by J. Black, 34–58. İstanbul: Kitap Yay ınevi, 2003. Sibley, M. Q., “Pacifism.” In International Encyclopaedia of the Social Science, vol. 11, edited by D. L. Sills and R. K. Merton, 353–357. New York and London: Macmillan Company, 1968. Stanfield II, J. H., “The Dilemma of Conscientious Objection for Afro-Americans.” In The New Conscientious Objection: From Sacred to Secular Resistance, edited by C. C. Moskos and J. W. Chambers, 47–56. Oxford: Oxford University Press, 1993. Tiernay, B., “Religious Rights: A Historical Perspective.” In Religious liberty in Western Thought, edited by N. B. Reynolds and Jr. W. C. Durham, 29–57. Atlanta, GA: Scholars, 1996. Tilly, C., “War Making and State Making as Organised Crime.” In Bringing the State Back In, edited by P. B. Evans, D. Rueschemeyer, and T. Skocpol, 169–191. Cambridge and London: Cambridge University Press, 1985. Üçpınar, H., “Türkiye’de Vicdani Reddin Suç ve Ceza Konusu Olması ve Sonuçları.” In Çarklardaki Kum: Vicdani Red—Düşünsel Kaynaklar ve Deneyimler, edited by Ö. H. Çınar and C. Üsterci, 313–334. İstanbul: İletişim Yay ınları, 2008. Vermeulen, B., “Scope and Limits of Conscientious Objections.” In Freedom of Conscience, edited by Council of Europe, 75–93. Strasbourg: Council of Europe, 1993. Wagner, W. J. “The Right to Accommodation: Should it be Legislatively Recognized?” In Selective Conscientious Objection Accommodating Conscience and Security, edited by Jr. M. F. Noone, 25–34. Boulder, San Francisco and London: Westview, 1989. Williams, B., “Morality, Scepticism and the Nuclear Arms Race.” In Objections to Nuclear Defence: Philosophers on Deterrence, edited by N. Blake and K. Poole, 99–114. London: Routledge and Kegan Paul, 1984.

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Kuzas, K. J., “Asylum for Unrecognized Conscientious Objectors to Military Service: Is There a Right Not to Fight?” Virginia Journal of International Law 31 (1990–1991): 447–478. Le Fur, L., “La Théorie du Droit Naturel Depuis le XVIIème Siècle et la Doctrine Moderne,” RCADI 18 (1927–III): 259–442. Lippman, M., “The Recognition of Conscientious Objection to Military Service as an International Human Right,” California Western International Law Journal 21 (1990/1991): 31–66. Lynch, K. L., “Voting One’s Conscience,” Society 42 (2005): 27–29. Major, M-F., “Conscientious Objection and International Law: A Human Right?” Case Western Reserve Journal of International Law 24 (1992): 349–378. Marcus, E. N., “Conscientious Objection as an Emerging Human Right,” Virginia Journal of International Law 38 (1997–1998): 507–545. McGuire, M. C., “On Conscience,” The Journal of Philosophy 60 (1963): 253–262. Menéndez, A. J., “The Sinews of Peace: Rights to Solidarity in the Charter of Fundamental Rights of the European Union,” Ratio Juris 16 (2003): 374–398. Musalo, K., “Swords into Ploughshares: Why the United States Should Provide Refuge to Young Men Who Refuse to Bear Arms for Reasons of Conscience,” San Diego Law Review 26 (1989): 849–886. Musalo, K., “Conscientious Objection as a Basis for Refugee Status: Protection for the Fundamental Right of Freedom of Thought, Conscience and Religion,” Refugee Survey Quarterly 26 (2007): 69–78. Naismith, S., “Religion and the European Convention on Human Rights,” Human Rights and UK Practice 2 (2001): 8–26. Reilly, R., “Conscience, Citizenship, and Global Responsibilities,” BuddhistChristian Studies 23 (2003): 117–131. Robertson, A. H., “The European Convention for the Protection of Human Rights,” British Yearbook of International Law 27 (1950): 145–163. Rotenstreich, N., “Conscience and Norm,” The Journal of Value Inquiry 27 (1993): 29–37. Schaffer, P. and D. Weissbrodt, “Conscientious Objection to Military Service as a Human Right,” The Review International Commission of Jurists 9 (December 1972): 33–67. Speck, A., “Dünyada Ça ğda ş Red ve Red Hareketlerinin Ana Hatları: Sava ş Karşıt ı Uluslararası Hareket İçinde Red,” Birikim 207 (2006): 42–54. Türmen, R., “Vicdani Ret, Artık Din ve Vicdan Özgürlüğü Kapsamında Değerlendiriliyor,” İzlem Special Issue (September 2011): 7. Walch, J., “Aid to Military Refugees: The Case of Sweden,” War Resistance 3 (1974): 27–28. Wiener, M., “The Mandate of the Special Rapporteur on Freedom of Religion or Belief—Institutional, Procedural and Substantive Legal Issues,” Religion and Human Rights 2 (2007): 3–17. Wolff, R., “Conscientious Objection: Time for Recognition as a Fundamental Human Right,” Association of Student International Law Societies (ASILS) International Law Journal 6 (1982): 65–95.

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Wollenburg, D., “Is There a God-Pleasing Purpose to War?: An Introduction to Just War Concepts,” Concordia Journal 29 (2003): 65–69. Woloch, I., “Napoleonic Conscription: State Power and Civil Society,” Past and Present 111 (1986): 101–129.

Electronic Articles A Statement by the Quakers to King Charles II (1660), cited in Friends in Christ, available at http://www.plainquaker.org/1660Declaration.html. Brett, D., “COMMENTARY: Bayatyan—a European Court judgment with an impact far beyond Armenia” (July 26, 2011), Forum 18, available at http://www .forum18.org/Archive.php?article_id=1597. Cobb, K., “A Season of Violence” (September 23, 2001), available at http://articles .courant.com/2001–09–23/news/0109230678_1_islam-god-and-muhammad -muslims/2 . Hammarberg, T., “Judgments issued by the European Court cannot be ignored” (July 19, 2011), available at http://commissioner.cws.coe.int/tiki-view_blog _post.php?postId=154. Peace Pledge Union, “Conscientious Objection in Britain during the Second World War,” available at http://www.ppu.org.uk/learn/infodocs/cos/st_co_wwtwo .html. Pratter, J., “À la Recherche des Travaux Préparatoires: An Approach to Researching the Drafting History of International Agreements,” Hauser Global Law School Program: New York, (2005), available at http://www.nyulawglobal.org/Globalex /Travaux_Preparatoires.htm#_Edn6. Samuel, B., “The Beginnings of Quakerism,” (July 12, 1998), available at http:// www.quakerinfo.com/quakhist.shtml. The Decisions of the Conference of the Russian Social Democratic Labour Party, “Resolutions on the Imperialist War,” Pacifism and the Peace Slogan, (February 27–March 4, 1915), available at http://www.international-communist-party.org /BasicTexts/English/15LeniGE.htm. United Kingdom Border Agency, “Asylum Policy Instruction on Military Service and Conscientious Objection,” available at http://www.ukba.homeoffice .gov.uk/sitecontent/documents/policyandlaw/asylumpolicyinstructions/apis /militaryservice.pdf?view=Binary.

PhD Theses and Masters Dissertations Gilbert, H. J., “The Right to Freedom of Belief: A Conceptual Framework.” PhD Thesis, University of Essex: Colchester, 2001. Taylor, G. N., “The Legislative Tradition of Concientious Objection and Its Future in the Nuclear Age.” PhD Thesis, King’s College London: London, 1994. Whittome, C., “Conscientious Objection to Military Service: A Human Right?” Masters Dissertation, University of Essex: Colchester, 1984.

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Conference and Seminar Papers Lenin, V. I., “Socialism and War.” In the pamphlet was published in 1915 and distributed among the delegates to the Zimmerwald Socialist Conference. Siesby, E., “Conscientious Objection in Danish Law.” In the proceedings of the meeting of the European Consortium for Church and State Research, Conscientious Objection in the EC Countries, December 7–8, 1990, Leuven: Brussels. Speck, A., “Demilitarisation in the Global Context.” In the regional conference on conscientious objection and civilian service “To Europe through Conscientious Objection and Civilian Service,” September 20–22, 2004, Sarajevo. The Catholic Bishops of the United States, “Declaration on Conscientious Objection and Selective Conscientious Objection.” October 21, 1971, United States Catholic Conference, Washington, DC. Wenger, J. C., “Pacifism and Biblical Non-Resistance.” This paper was read at the Peace Witness Seminar, Evangelicals in Social Action, Eastern Mennonite College, November 30, 1967, Harrisonburg, Virginia.

Official Documents United Nations Capotorti, F., 1991, “Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities,” UN Doc. E.91.XIV.2, UN Publication: New York and Geneva. Daes, E.-Irene A., 1983, “Freedom of the Individual under Law: An Analysis of Article 29 of the Universal Declaration of Human Rights,” UN Doc. E/CN.4 /Sub. 2/432/Rev.2, United Nations Publication: New York. Eide, A. and C. Mubanga-Chipoya, 1983, “Conscientious Objection to Military Service,” UN Doc. E/CN.4/Sub.2/1983/30, UN Publication: New York and Geneva. Halpern, P. H., 1954, “Preliminary Report of the Proposed Study on Discrimination in the Matter of Religious Rights and Practices,” UN Doc. E/CN.4/Sub. 2/162, UN Publication: New York and Geneva. Krishnaswami, A., 1960, “Study of Discrimination in the Matter of Religious Rights and Practices,” UN Doc. E/CN.4/Sub. 2/200/Rev.1, UN Publication: New York and Geneva. Office of the United Nations High Commissioner on Refugees, 1979, reedited in 1992, “Handbook on Procedures and Criteria for Determining Refugee Status,” HCR/IP/4/Eng/Rev.1, UNHCR Publication: Geneva. Service Civil International, 1950, UN Doc. E/CN.4/NGO/1 Add. 1. United Nations, 1947, “The Universal Declaration of Human Rights—An Historical Record of the Drafting Process,” available at http://www.un.org /depts/dhl/udhr/docs_1947_1st_draftcom.shtml.

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African Commission on Human and Peoples’ Rights African Commission on Human and Peoples’ Rights, July 19–23, 2010, 28th Activity Report of the African Charter on Human and Peoples’ Rights, EX.CL/600(XVII).

Council of Europe Bauer, M., January 17, 1967, “Report on the Right to Conscientious Objection,” Doc. 2170, Consultative Assembly of the Council of Europe, Council of Europe: Strasbourg. Council of Europe, “Conclusions of the European Committee of Social Rights,” available at http://www.coe.int/t/dghl/monitoring/socialcharter/conclusions /conclusionsyear_EN.asp European Court of Human Rights, November 2001, “Article 9: Freedom of Thought, Conscience and Religion,” Human Rights Practice R 2, Council of Europe: Strasbourg. European Court of Human Rights, 2011, “Annual Report 2010,” Council of Europe: Strasbourg. European Court of Human Rights, 2013, “Annual Report 2012,” Council of Europe: Strasbourg. Skakkebaek, C., 1992, “Article 9 of the European Convention on Human Rights,” H (92) 16, Human Rights Information Centre Directorate of Human Rights: Strasbourg.

European Union European Commission, November 14, 2009, “2009 Regular Report on Turkey’s Progress Towards Accession,” SEC(2009)1334/3. ———. November 9, 2010, “2010 Regular Report on Turkey’s Progress Towards Accession,” SEC(2010)1327. ———. October 12, 2011, “2011 Regular Report on Turkey’s Progress Towards Accession,” SEC(2011)1201. European Parliament Resolution Report, September 13, 2006, 2006/2118(INI). European Union, December 1, 2009, “Explaining the Treaty of Lisbon,” MEMO/09/531. European Union Network of Independent Experts on Fundamental Rights, June 2006, “Commentary of the Charter of Fundamental Rights of the European Union,” CFR-CDF. Explanations Relating to the Charter of Fundamental Rights of the European Union, December 14, 2007, 2007/C 303/02, OJ C 303/17. The Charter of Fundamental Rights of the European Union—Explanations Relating to the Complete Text of the Charter, Office for Official Publications for the European Communities: Luxembourg, October 11, 2000. The Council of the European Union, Council Directive 2004/83/EC, “On Minimum Standards for the Qualification and Status of Third Country

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Inter-American Commission on Human Rights Inter-American Commission on Human Rights, 1998, “Annual Report 1997,” OEA/Ser.L/V/II.98, Doc. 6 Rev. Inter-American Commission on Human Rights, 1999, “Annual Report 1998,” OEA/Ser.L/V/II.102 Doc. 6 Rev.

Organization of American States de Abranches, D., 1968, “Comparative Study of UN Covenant on Civil and Political Rights and on Economic Social and Cultural Rights and of the Draft Inter-American Convention on Human Rights,” OEA/Ser. L/V/II.19 Doc. 18. Inter-American Commission on Human Rights, 1987) “Inter-American Yearbook on Human Rights 1985,” Martinus Nijhoff: Dordrecht/Boston/Lancaster. Organization of American States, 1978, “Inter-American Yearbook on Human Rights 1968,” General Secretariat of the Organization of American States: Washington DC.

Organization for Security and Cooperation in Europe Organization of Security and Cooperation in Europe and Office for the Democratic Institutions and Human Rights, 2005, “OSCE Human Dimension Commitments: Thematic Compilation,” 2nd ed., vol. II, OSCE Office for Democratic Institutions and Human Rights: Warsaw. ———. 2008, “Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel,” OSCE Office for Democratic Institutions and Human Rights: Warsaw.

Other Official Documents British Ministry of Defence’s Letter under the Freedom of Information Act, January 24, 2011, No. 06–01–2011–170837–002. President Franklin D. Roosevelt, US Senate Doc. no. 188, January 6, 1941, 77th Congress, 2nd Session, 86–87.

Non-Governmental Organisation Documents American Friends Service Committee, 1955, “Speak Truth to Power, a Quaker Search for an Alternative to Violence: A Study of International Conflict,” Philadelphia: USA.

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Amnesty International and et. al., July 15, 2010, “Third Party intervention to the Grand Chamber of the European Court of Human Rights in the case of Bayatyan v. Armenia ,” Application no. 23459/03, Annex 5. Brett, D., 2006, “Military Recruitment and Conscientious Objection: A Thematic Global Survey,” Conscience and Peace Tax Intenational: Leuven and Geneva. ———. 2012, “The Report to the Committee on Civil Liberties, Justice and Home Affairs of the European Parliament- Conscientious Objection to Military Service in Europe 2011/2012,” European Bureau for Conscientious Objection: Brussels. ———. 2013, “Annual Report: Conscientious Objection to Military Service in Europe 2013,” European Bureau for Conscientious Objection: Brussels. Brett, R., 2008, “International Standards on Conscientious Objection to Military Service,” Quaker United Nations Office: Geneva and New York. European Bureau for Conscientious Objection, 2011, “Report to the Council of Europe—The Right to Conscientious Objection in the Council of Europe Member States,” European Bureau for Conscientious Objection: Brussels. European Council on Refugees and Exiles, April 29, 2004, “European Council on Refugees and Exiles Information Note on the Council Directive 2004/83/EC,” IN1/10/2004/ext/CN. Forces Watch Briefing, February 2011, “Conscientious Objection in the UK Armed Forces,” Forces Watch; London. Horeman, B. and M. Stolwijk, 1998, updated in 2005, “Refusing to Bear Arms: A Worldwide Survey of Conscription and Conscientious Objection to Military Service,” War Resisters’ International: London. International Peace Bureau, March 8, 1971, “The Role of Youth in the Promotion and Protection of Human Rights, Including the Question of Conscientious Objection to Military Service,” E/CN.4/1989/71.2. M.C.P.S. Bulletin, July 11, 1946. Peace Pledge Union, 2006, “Refusing to Kill: Conscientious Objection and Human Rights in the First World War,” Peace Pledge Union Publication: London. Pflüger, T., 2008, “Professional Soldiers and the Right to Conscientious Objection in the European Union,” GUE/NGL and WRI: Brussels and London. Smail, A., 1981, “The Church and the Military in South Africa,” Committee on South Africa War Resistance: London. Stolwijk, M., 2005, updated in 2008, “The Right to Conscientious Objection in Europe: A Review of the Current Situation,” Quaker Council for European Affairs: Brussels. The Church in the Modern World, 1965, “Pastoral Constitution,” Gaudium et Spes, Second Vatican Council: Vatican. The Lawyers Committee for International Human Rights, 1980, “Conscientious Objection as a Human Right,” background paper prepared for the United Nations Commission on Human Rights, Lawyers Committee for International Human Rights: New York. “The Position of the Conscientious Objector,” 1916, the leaflet in the Library of Friends’ House, London.

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The World Council of Churches, 1968, “Towards Justice and Peace in International Affairs,” the Fourth Assembly of Sec, II, A, Uppsala: Sweden. War Resisters Support Campaign, “War Resisters in Canada,” War Resisters Support Campaign: Toronto. War Resisters’ International, April 17, 2006, “Britain: Conscientious Objector Sentenced to Eight Month in Prison,” War Resisters’ International: London. ———. January 22, 2009, “Conscientious Objection: Legal Practices and Frameworks Among EU Member States,” War Resisters’ International: London. ———. July 5, 2011, “Britain: Conscientious Objector Michael Lyons Sentences to 7 months’ Detention,” War Resisters’ International: London, available at http:// wri-irg.org/node/13261.

Newspaper and Magazine Articles “Anti-Afghan War Awol Soldier Joe Glenton Jailed,” BBC News, March 5, 2010, available at http://news.bbc.co.uk/1/hi/8551245.stm. “Detroit Bishop Asks for Conscientious Objectors,” Los Angeles Times, November 12, 1990, 13, available at http://articles.latimes.com/1990–11–12/news /mn-3285_1_bishops-conscientious-objectors. Glenton, J., “Why I Refused to Return to Fight in Afghanistan’s Brutal Occupation,” The Guardian, April 25, 2012, http://www.guardian.co.uk/commentisfree/2012 /apr/25/why-i-refused-to-fight-afghanistan-occupation. Kutty, F., “American Conscientious Objector Wins Right to Appeal Refugee Board Ruling,” Washington Report, January/February 2006, 46–47, available at http://faisalkutty.com/publications/washington-report/american-conscientious -objector-wins-right-to-appeal-refugee-board-ruling/. Payne, S., “RAF Officer Faces Trial over ‘Illegal War’ Claim,” The Telegrapgh, March 16, 2006, available at http://www.telegraph.co.uk/news/uknews/1513105 /RAF-officer-faces-trial-over-illegal-war-claim.html. “RAF Doctor Jailed over Iraq Refusal,” The Guardian, April 13, 2006, available at http://www.guardian.co.uk/uk/2006/apr/13/military.iraq. World Synod of Catholic Bishops, “Justice in the World,” 1971, available at http:// www.shc.edu/theolibrary/resources/synodjw.htm.

Documentary “Not Forgotten: The Men Who Wouldn’t Fight,” Channel 4, UK, broadcasted on November 10, 2008.

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Index 1951 Refugee Convention, 87–8, 91–3 Abelard, Peter, 9 Act on Conscientious Objection to Military Service, 76 Afghanistan War, 35, 90, 92 African Charter on Human and Peoples’ Rights, 3 ahimsa, 20 Alkema, E.A., 122–3 alternative civilian service AmrCHR and, 149–50, 153 CHR and, 66–7 development of, 38–9 discrimination and, 73–6 ECHR and, 114–18, 141–4 ECtHR and, 136–8 HRC and, 71, 73–6, 81 ICCPR and, 60 Jehovah’s Witnesses and, 114–18, 125–6, 128–30 noncombat conscientious objectors and, 29–32, 160 PACE and, 107–8, 110 total conscientious objectors and, 27–9 Turkey and, 132–4 See also unarmed military service Althusius, Johannes, 11 American Convention on Human Rights (AmrCHR) Article 6(3)(b), 147–8, 152 Article 12, 145–6, 152

Christian Daniel Sali Vera et. al. v. Chile and, 152, 156 conscientious objection and, 45, 50, 145–8, 159 travaux préparatoires, 3, 145–8, 157 American Declaration of the Rights and Duties of Man, 170 Anabaptists, 18–19, 188n19 anarchism, 22–3, 33 antimilitarizm, 23–4, 33, 133–4 arbitrary detention, 84–5, 149 Atlantic Charter, 43, 201n3 Bacon, Francis, 11 Bandrés Molet and Bindi Resolution, 141–2 Bayle, Pierre, 11 Bayliss, Jack, 35 Bible, 9 Bodin, Jean, 11 Boyle, Kevin, 44, 48, 55, 123 Brock, Peter, 20, 27 Canada, 89, 91 Chambers, John W., 1, 19, 27, 32 Charter of Fundamental Rights of the European Union (CFREU), 4, 41, 127, 138–42, 157 Charter of the Organization of American States, 147, 170 Charter of the United Nations (1945), 44, 169, 202n9 China, 63, 65 Christianity, 8–9, 17–20, 28, 55, 156

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Churchill, Winston, 43 Commission on Human Rights (CHR) conscientious objection and, 61–8, 85–7, 245n417 ICCPR and, 50, 52–3, 56, 58, 205n61 refugees and, 87 Resolution no. 40, 208n148 Resolution no. 1995/83, 197n59 Resolution no. 1998/77, 218n327 San Francisco Conference and, 44 Special Rapporteurs and, 85–6 UDHR and, 45–7 Working Group and, 85 compulsory military service AmrCHR and, 147, 149–52, 155 CHR and, 62–5 conscientious objection and, 28–32, 87, 89 discrimination and, 117 ECHR and, 103–5, 115, 117, 119, 141, 144 exemption from, 19 explained, 1–2 history of, 19, 38–9 HRC and, 69, 78, 80–2, 135 ICCPR and, 56–9, 78 opposition to, 19, 24 UDHR and, 49 UN Member States and, 34, 49, 132 Conference on Security and Co-operation in Europe (CSCE), 142–3 Congress of Vienna (1814), 13 conscientious objection to military service alternativist and noncombatant, 29–32 based on nonreligious beliefs, 21–5 based on religious beliefs, 17–21 categories of, 27–8 CHR and, 61–8 discrimination and, 73–6 disproportionately severe punishment for, 88–9

HRC and, 68–84 as human right, 41–2 military actions condemned by international community, 90–2 objecting for right reason, 89 refugee status and, 87–92 selective, 33–8 Special Rapporteurs and, 85–6 total (absolutist), 28–9, 76–8 UN General Assembly and, 61 Working Group and, 84–5 conscription AmrCHR and, 150–1, 159 community and, 49 conscientious objection and, 27–8, 34, 117–18, 141 court cases and, 117–18, 141, 150 El Salvador and, 89 explained, 2 Germany and, 30 history of, 21, 25–6 Holland and, 19 PACE and, 105, 107, 109–10 Conscription Act (1939), 36 Copenhagen Meeting, 4, 143 court cases A v. Switzerland, 116 Aapo Järvinen v. Finland, 73, 75 Alfredo Díaz Bustos v. Republic of Bolivia, 153 Arrowsmith v. UK, 100 Autio v. Finland, 115–17 Bayatyan v. Armenia, 120, 125, 136, 153 Bukharatyan and Tsaturyan v. Armenia, 133, 135–6 Campbell and Cosans v. UK, 100 Canadian, 167 Canas-Segovia v. INS, 89 Cenk Atasoy and Arda Sarkut v. Turkey, 81 Conscientious Objectors v. Denmark, 116–17 Cristian Daniel Sahli Vera et. al. v. Chile, 150, 155–6

Index Erçep v. Turkey, 131, 133, 135–6 Fethi Demirtaş v. Turkey, 133, 135–6 Foughali v. Secretary of State for Home Department, 89 Frédéric Foin v. France, 74–6 German, 167–8 Godefriedus Maria Brinkhof v. the Netherlands, 75, 77 Grandrath v. Federal Republic of Germany, 114 international, 161–2 Julin v. Finland, 116 Kimlya and others v. Russia, 100 L.T.K. v. Finland, 72 Last Temptation of Christ v. Chile, 148 list of cases, 161–68 Manoussakis v. Greece, 122–3 Marc Veiner and Paul Nicolas v. France, 75 Otto Preminger Institute v. Austria, 100 Paavo Muhonen v. Finland, 72 Paul Westerman v. the Netherlands, 77 Quaker Council for European Affairs v. Greece, 137 Raninen v. Finland, 118 regional, 162–7 Richard Maille v. France, 75 Savda v. Turkey, 133–6 Schmidt v. Germany, 119 Soufiane Ababou v. People’s Democratic Republic of Algeria, 180n9 Tarhan v. Turkey, 134–6 Thlimmenos v. Greece, 121 Tsirlis and Koulompas v. Greece, 119 Tyrer v. UK, 123 UK, 168 Ülke v. Turkey, 123–4, 133 US, 168 X v. Austria, 115 X v. Belgium, 115 X v. Federal Republic of Germany, 115

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271

Yeo-Bum Yoon and Myung-Jin Choi v. Republic of Korea, 78, 82 Daes, E.-Irene A., 34, 48–9, 204n48–9 de Abranches, C.A. Dunshee, 146 De Light, Bart, 23 Decker, D. Christopher, 98, 103–5, 109, 123 Declaration of Independence, 19 Declaration of the Rights of Man and of the Citizen, 12, 21 Declaration on Territorial Asylum, 61 Denmark, 22, 31, 34, 116 desertion, 88–9, 91, 131, 134 discharge from military, 35 Documents of Copenhagen, 143 Drafting Committee, 44–5, 56, 59 Eberly, Donald J., 27 Economic and Social Council (ECOSOC), 44 Edict of Milan (313), 8 Eide, Asbjarn, 7, 30, 32, 34–5, 49, 60, 62, 90 El Salvador, 63, 89 England, 10–12 Ermacora (Commissioner), 115 Estonia, 31, 138 European Commission of Human Rights, 98–102, 111–22, 125, 127–8, 144, 153 European Convention on Human Rights (ECHR) AmrCHR and, 145–6, 157 Article 9, 95–8, 101–2 Bayatyan v. Armenia and, 120 CFREU and, 138–9 conscientious objection and, 45, 50, 111–13 Schmidbauer Resolution and, 141 travaux préparatoires, 3, 104, 107–9, 144

272

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European Court of Human Rights (ECtHR) Bayatyan v. Armenia and, 120, 125, 144 Committee of Ministers and, 108–9 conscientious objection and, 158–9 ECHR and, 99 Erçep v. Turkey and, 133 freedom of conscience and, 99, 136 Manoussakis v. Greece and, 123 European Social Charter, 4, 136–8 Eustathiades (Commissioner), 15, 20, 126 Evans, Malcolm D., 45, 102 Finland, 29, 72–3, 115–18, 138 First Optional Protocol of the International Covenant on Civil and Political Rights, 51, 169, 205n62, 213n220 forced labor, 4, 60, 102–5, 137, 243n396, 244n408 forum externum/forum internum, 11, 47–8, 50, 52, 55, 81, 83, 93–4, 101–2, 113, 126, 131, 136, 157–8 France, 21, 46, 58, 74–5 freedom of conscience, 3 AmrCHR and, 146 Atlantic Charter and, 43 CHR and, 62 conscientious objection and, 25, 31–2, 37, 41–2, 100, 148–54 ECHR and, 115, 136, 141 ESOSOC and, 45 HRC and, 69, 77–9, 81 Nineteenth Century to present, 13–14 overview, 7 Paavo Muhonen v. Finland and, 72 religion and, 148 Renaissance to Nineteenth Century, 10–12 Resolution 1998/77 and, 66 secularism and, 25 total objection and, 76–8

UDHR and, 45–6, 50 up to Middle Ages, 8–10 U.S. Supreme Court and, 25 freedom of expression, 12, 41, 43, 85–6, 99, 146, 159 freedom of speech, 43 Fresa, Lucia, 98, 103–5, 109, 123 Gandhi, Mahatma, 20 Germany, 19, 30–2, 34, 36–8, 114–15, 119 Glenton, Joe, 35 Greece, 31–2, 112–13, 119, 121–2, 137–8 Grotius, Hugo, 11 Gyulumyan, Alvina, 131, 133 Hammer, Leonard M., 13, 36, 45, 70, 146 Human Rights Committee (HRC) alternative civilian service and, 71, 73–6, 81 compulsory military service and, 68–73, 78 conscientious objection and, 68–84 freedom of conscience and, 69, 77–9, 81 ICCPR and, 68–73, 78 UK and, 70 UN and, 68, 122 unarmed military service and, 72–3 Human Rights Council, 61, 68 human rights systems AmrCHR, 145–56 Council of Europe, 95–137 European Committee of Social Rights, 137–8 European Social Charter, 136–7 European Union, 138–42 OSCE, 142–3 Hume, David, 11 Ibero-American Convention on Young People’s Rights, 41 Immigration and Nationality Act, 89

Index Immigration Appeal Board (IAB), 89 Immigration Appeal Tribunal (IAT), 89 imprisonment, 29, 35, 75, 78, 80, 83, 85, 88–9, 112, 123–4, 126, 133, 142, 159 Inter-American Commission on Human Rights, 145, 147–55, 158–9 Inter-American Court of Human Rights, 147–50 International Convention of Constantinople, 185n65, 169 International Convention on the Elimination of All Forms of Racial Discrimination, 169 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 170 International Covenant on Civil and Political Rights (ICCPR) AmrCHR and, 145–6, 151 Article 8 Article 18, 50–61, 63–5, 78, 80–1, 83, 85, 93 Article 26, 74–6 CHR and, 63–5 conscientious objection and, 3, 69–73, 84, 98–9, 115, 123, 157–8 court cases and, 72 ECHR and, 101–2 final text: meaning of Article 18, 54–6 HRC and, 68–73, 78 right to conscientious objection and, 63 travaux préparatoires, 3, 7, 157 of Article 8, 56–61 of Article 18, 51–4 UDHR and, 50 International Covenant on Economic, Social and Cultural Rights, 170, 205n61 Iraq, 63

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Iraq War, 33, 35–7, 90–2 Islam, 20–1, 46, 55 Israel, 68 Japan, 9, 20 Jehovah’s Witnesses Alfredo Díaz Bustos v. Republic of Bolivia and, 153 Bayatyan v. Armenia and, 125, 128–9, 131 Brinkhof v. the Netherlands and, 75–6 conscientious objection and, 100, 112, 114, 118–19 ECHR and, 112, 114, 116 ECtHR and, 125 El Salvador and, 89 Fethi Demirtaş v. Turkey and, 133–4 Finland and, 118 founding of, 19 Germany and, 114 Greece and, 121–2 government and, 19 Turkey and, 81 Yoon and Choi v. Republic of Korea and, 78 , 80 Judaism, 10, 20–1 Just War doctrine, 18–19, 21, 38 Kant, Immanuel, 12 Kendall-Smith, Malcolm, 35, 198n68 Krishnaswami, A., 11 Kurlansky, M., 20 Law of Treaties, 120, 123 League of Nations, 14 Lenin, Vladimir, 23 lethal force, 69–70, 77, 110 Liddy, J. (Commissioner), 119–22, 126 Liskofsky, Sidney, 47–8 Locke, John, 11–12 Luther, Martin, 18 Lutheranism, 11 Lyons, Michael, 35

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Macciocchi Resolution, 141–2 Marxism, 23, 55 Maximilianus, 17 Moldova, 31 Moskos, Charles C., 1, 19, 27, 32 Mubanga-Chipoya, Chama, 30, 32, 34–5, 49, 60, 90 Muhonen, Paavo, 72. See also court cases Netherlands, 10, 22, 34–5, 61, 75–7 Neuman, Gerald L., 82 Non-Combatant Corps (NCC), 30 Norway, 22, 32, 34 Nuremberg Principles, 33–4, 49, 90 Office of the United Nations High Commissioner for Human Rights (OHCHR), 67 Organization for Security and Co-operation in Europe (OSCE), 142–3, 145 Organization of American States (OAS), 146–7, 155 pacificism, 17–21, 23, 28, 35, 75–6, 100, 123, 134–5, 152 Parliamentary Assembly of the Council of Europe (PACE), 105–9, 111, 127 Persian Gulf War, 33, 36, 38 police forces, 61, 90 Popović , Dragoljub, 133 Power, Ann, 125–6, 236n243 Protocol Relating to the Status of Refugees, 170 Quakers, 18–19, 137 recurso de protección, 150 refugee status, 4, 42, 65, 87–90, 92–3, 219n337–8 Richards, David A.J., 13 Rodley, Nigel, 82 Rodotà, Stefano, 27 Roman Catholic Church, 10–12, 18, 22, 153 Roosevelt, Eleanor, 57

Roosevelt, Franklin D., 43, 45 Russell, Charles Taze, 19 Sajo, Andras, 133 Salvioli, Fabían Omar, 83 San Francisco Conference, 44 Schmidbauer Resolution, 141–2 selective objection, 33–8 Shaw, Malcolm N., 102 slavery, 4, 13, 57, 102–4, 185n62, 244n408 Socialism, 22–3, 33, 59 Solari-Yrigoyen, Hipólito, 79 South Africa, 61, 63, 90 Special Rapporteurs, 11, 49, 85–6, 146, 217n319 Statute of the Council of Europe, 108, 111, 223n4, 230n116, 245n412 Substitute Civilian Service Act, 114 Sweden, 12, 22, 70, 91 Takemura, Hitomi, 73 Teitgen, Pierre-Henri, 96 Tertullian, 8, 18 Toleration Act of 1698, 12 Tolstoy, Leo, 23 Torah, 20 total objection, 28–9, 76–8 travaux préparatoires African Charter on Human and Peoples’ Rights, 3 AmrCHR, 145–7 Article 8 of ICCPR, 56–61 conscientious objection and, 3, 93, 95, 157 ECHR, 102–3, 144 ICCPR, 7, 51–4 UDHR, 3, 41–2, 44–7 Treaty of Berlin (1878), 13 Treaty of Commerce and Amity (1783), 12 Treaty of Lisbon (2009), 138, 140 Treaty of Paris (1898), 169, 185n65 Treaty of Vienna (1815), 13 Treaty of Westphalia (1648), 10–11 Treaty on European Union (Treaty of Maastricht), 241n366

Index Turkey, 68, 81–2, 84, 86, 92, 107, 123, 131–5, 142 Unarmed and Alternative Service Act, 72–4, 117 unarmed military service AmrCHR and, 149, 160 CHR and, 63–4, 66–7 conscientious objection and, 27–32, 38, 66–7 Documents of Copenhagen and, 143 ECHR and, 109, 141 explained, 2 Finland and, 72 HRC and, 72–3 ICCPR and, 60, 72, 116–17 PACE and, 107, 109 See also alternative civilian service UNHCR Handbook on the Determination of Refugee Status, 87–93 Union of Soviet Socialist Republics (USSR), 59, 63 Union of Utrecht (1579), 10 United Kingdom (UK) CHR and, 62 conscientious objection and, 29, 34–6, 100 court cases, 35–6, 100, 123 ECHR and, 103–4 HRC and, 70 ICCPR and, 51, 53, 57–9 Immigration Appeal Tribunal, 89 UDHR and, 46 United Nations AmrCHR and, 145, 151, 153 Charter, 44, 169, 202n9 conscientious objection and, 41–2, 61, 93–4 Declaration, 43 Documents of Copenhagen and, 143 “Freedom of the Individual under Law,” 34 HRC and, 68, 122 ICCPR and, 56 OSCE and, 143, 145

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PACE and, 106 Refugee Convention and, 87–8 treaties, 4 UDHR and, 49–50 See also Special Rapporteurs; Working Group United Nations High Commissioner for Refugees (UNHCR), 4, 87–8 United States alternative civilian service and, 28 CHR and, 63 conscientious objection and, 25, 28, 89–91 court cases, 36, 89–91, 168–9 Declaration of Independence, 19 ICCPR and, 53, 56–7, 59, 63 Immigration and Nationality Act, 89 individual freedoms and, 12 Jehovah’s Witnesses and, 19 treaties, 12 UDHR and, 43 Universal Declaration of Human Rights (UDHR) AmrCHR and, 146 Article 18, 43–50, 93 meaning of, 47–50 travaux préparatoires of, 44–7, 157 conscientious objection and, 146 ECHR and, 96, 98–9, 101–2, 107 ICCPR and, 50–5, 63–5 Universal Periodic Review (UPR), 68 use of arms, 81–2, 109–10 Vienna Convention, 120, 123, 155 Vietnam War, 33, 36, 38, 65, 90–1 Voltaire, 11 wages, 59, 116–17 Wedgwood, Ruth, 79 Working Group of the UPR, 68 Working Group on Arbitrary Detention, 84–5 World War I, 14, 22–3, 29–30, 33 World War II, 14, 20, 36, 42, 90, 157, 159

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