4.1.3 Conscientious objection Condensed: Conscientious objection is the right of a person to refuse to do military service based on freedom of religion, belief, thought or conscience. States must have a procedure for recognition of conscientious objection against military service. No differentiation shall be made among conscientious objectors on the basis of the nature of their particular beliefs. Alternative service for conscientious objectors may be of longer duration than military service without being discriminatory. However, the longer duration must be based on objective and reasonable criteria and not to test the sincerity of an individual’s convictions. Comprehensive:
Conscientious objection is the right of a person to refuse to do military service based on freedom of religion, belief, thought or conscience. States must have a procedure for recognition of conscientious objection against military service.
In General Comment 22, the HRC noted that a right to conscientious objection ‘can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief.‘[1] However, Article 8(3)(c)(ii) of the ICCPR excludes from the definition of *forced labour* ‘[a]ny service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors.’ The wording seemingly indicates that states have no obligation to recognise conscientious objection.
In Yoon and Choi v Republic of Korea the HRC held that to not have a ‘procedure for recognition of conscientious objections against military service‘ violated the right to freedom of thought conscience and religion in article 18 of the ICCPR.[2] In 2011, the ECtHR Grand Chamber concluded that article 9 of the ECHR should no longer be read in conjunction with article 4 § 3 (b) of the ECHR.[3] While article 9 did not explicitly refer to a right to conscientious objection, the Grand Chamber considered that opposition to military service - where it was motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or deeply and genuinely held religious or other beliefs - constituted a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 of the ECHR.
According to the HRC ‘[n]o differentiation shall be made among conscientious objectors on the basis of the nature of their particular beliefs.’[4] Alternative service for conscientious objectors may be of longer duration than military service without being discriminatory.[5] However, the longer duration must be based on objective and reasonable criteria and not to ‘test the sincerity of an individual’s convictions’.[6] The decision concerning their status should be made, when possible, by an impartial tribunal set up for that purpose or a by a regular civilian court, with the application of all the legal safeguards provided for in international human rights instruments. There should always be a right to appeal to an independent, civilian judicial body, which should be entirely separate from the military authorities.
[7]
[1]HRC General Comment 22 para 11. [2]Yoon and Choi v Republic of Korea communications 1321–1322/2004 (HRC 2006) para 8.4. [3] Bayatyan v Armenia application 23459/03 (Grand Chamber judgment of 7 July 2011) . [4]HRC General Comment 22 para 11. [5]Järvinen v Finland communication 295/1988 (HRC 1990) para 6.6. [6] Venier and Nicolas v France communications 690/1996 & 691/1996 (HRC 2000) para 10.4. [7] Special Rapporteur on freedom of religion or belief, A/HRC/6/5, para. 22.
Condensed:
Conscientious objection is the right of a person to refuse to do military service based on freedom of religion, belief, thought or conscience. States must have a procedure for recognition of conscientious objection against military service. No differentiation shall be made among conscientious objectors on the basis of the nature of their particular beliefs. Alternative service for conscientious objectors may be of longer duration than military service without being discriminatory. However, the longer duration must be based on objective and reasonable criteria and not to test the sincerity of an individual’s convictions.
Comprehensive:
Conscientious objection is the right of a person to refuse to do military service based on freedom of religion, belief, thought or conscience. States must have a procedure for recognition of conscientious objection against military service.
In General Comment 22, the HRC noted that a right to conscientious objection ‘can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief.‘[1] However, Article 8(3)(c)(ii) of the ICCPR excludes from the definition of *forced labour* ‘[a]ny service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors.’ The wording seemingly indicates that states have no obligation to recognise conscientious objection.
In Yoon and Choi v Republic of Korea the HRC held that to not have a ‘procedure for recognition of conscientious objections against military service‘ violated the right to freedom of thought conscience and religion in article 18 of the ICCPR.[2] In 2011, the ECtHR Grand Chamber concluded that article 9 of the ECHR should no longer be read in conjunction with article 4 § 3 (b) of the ECHR.[3] While article 9 did not explicitly refer to a right to conscientious objection, the Grand Chamber considered that opposition to military service - where it was motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or deeply and genuinely held religious or other beliefs - constituted a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 of the ECHR.
According to the HRC ‘[n]o differentiation shall be made among conscientious objectors on the basis of the nature of their particular beliefs.’[4] Alternative service for conscientious objectors may be of longer duration than military service without being discriminatory.[5] However, the longer duration must be based on objective and reasonable criteria and not to ‘test the sincerity of an individual’s convictions’.[6] The decision concerning their status should be made, when possible, by an impartial tribunal set up for that purpose or a by a regular civilian court, with the application of all the legal safeguards provided for in international human rights instruments. There should always be a right to appeal to an independent, civilian judicial body, which should be entirely separate from the military authorities.
[7]
[1]HRC General Comment 22 para 11.
[2]Yoon and Choi v Republic of Korea communications 1321–1322/2004 (HRC 2006) para 8.4.
[3] Bayatyan v Armenia application 23459/03 (Grand Chamber judgment of 7 July 2011) .
[4]HRC General Comment 22 para 11.
[5]Järvinen v Finland communication 295/1988 (HRC 1990) para 6.6.
[6] Venier and Nicolas v France communications 690/1996 & 691/1996 (HRC 2000) para 10.4.
[7] Special Rapporteur on freedom of religion or belief, A/HRC/6/5, para. 22.