Conscientious Objection: Legal Rights

Originally published in International Encyclopedia of Peace xxx

 

Conscientious Objection (CO) is to refuse participation in a system of obligatory service when one is conscientiously opposed to the service. In most cases the objector refuses to do military service, but individuals may also refuse any form of required alternative to carrying arms. Frequently people refuse conscription despite lacking any legal right to do so.

In all military forces, individuals and groups have also refused to be recruited. Regardless of what system the military use to recruit people, there have always been individuals that have refused to take part. The majority of Conscientious Objectors (Cos), refuse prior to the start of their service, but may also change their minds while serving. They may have joined the army for economic reasons, because of the context of social expectations; because they considered it their civic or patriotic duty; or because they joined on impulse without considering the implications. Many have been punished severely for developing such conscientious objection during their service, including the death penalty. The legal right to refuse service after one has joined the army in most countries is either very limited or nonexistent.

The laws regulating the rights to conscientious objection can be identified on several levels. In the Universal Declaration on Human Rights, article four states that “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” The parallels to military service is so obvious that, when the European Convention on Human Rights (built on the text of the Universal Declaration) was written, they added to article four that “No one shall be required to perform forced or compulsory labour” and “For the purpose of this article the term forced or compulsory labour shall not include: (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.”

The European Convention is binding for the signatories and hence they did not want any CO to use the Universal Declaration on Human Rights to argue for his or her right to refuse service. This insistence of the right of states to conscript is both important and significant and is unlikely to remain unchallenged.

It is now accepted that the right to conscientious objection is protected under the right to freedom of thought, conscience and religion (Article 18 International Covenant on Civil and Political Rights, Article 9 of the European Convention of Human Rights), and seen as a legitimate exercise of this right. The former United Nations Commission on Human Rights has reiterated this right in several resolutions since 1987.

At the state-level the laws granting CO status can be categorized based on the reasons accepted for achieving CO status.  The oldest and largest category includes those objectors who are accepted for reasons of religious beliefs. Some faith communities are based on a pacifist interpretation of their holy texts. The Quaker, Mennonite, Brethren, and Bahá’i communities are examples of denominations that demand and/or encourage their members not to do military service.

Others, like Jehovah Witnesses refuse because they regard the Kingdom of God as their government and they refrain from saluting the flag of any country, or serving in the army or doing alternative service. In the USA, the Supreme Court has issued a series of landmark First Amendment rulings that confirm the Jehovah’s Witnesses right to be excused from military service. Several other countries have a similar policy. God is to these people more authoritative than the state. Permitting exemption from conscription due to religious faith, and hence a legal CO status, are still today the most frequent types of CO laws.

Though neither refused military service personally, inspired by God, Tolstoy and Gandhi were early civil objectors. They opposed the secular authorities with disobedience and some states gave up punishing them and their followers for their beliefs. Even harsh punishment or violence had little deterrent effect. As a consequence, in liberal democracies, many parliaments over time slowly reformed the laws, permitting the same legal rights to conscientious objection to non-religious pacifists, these constitute the second category of those who refuse to use violence of any sort as a matter of principle. However, liberal countries in Europe, and to a lesser degree North America, also, experienced a wave of Socialist pacifism in the decades prior to World War I. Sympathy for those who refused to take up arms against their “brothers” and “comrades” from other states grew. (They did not necessarily renounce revolutionary violence or “class war”.) The combination of hundreds inprisoned and the ascendance liberal and leftist parliaments, created a situation were new legislation permitting even more categories of CO status were passed. Such patterns were repeated late in the 20th Century; the act of sending more people to prison creates pressures on legislative bodies to accept more COs.  Some countries have expanded the legal rights to CO to include individuals with profound philosophical or moral reasons, whether or not religious, or pacifist.

In addition to religious and principled pacifist grounds for objection, more reasons have been accepted in the most liberal states in recent decades. Moral reasons against participating in an army with nuclear weapons have been accepted in some NATO countries. In Sweden, the nomadic Sami people received an exemption from conscription due to the difficulties of combining military service with taking care of reindeer. In Israel, there is a movement for the recognition of CO status for those who does not want to serve in the occupied territories, or the West Bank or other areas.

Every state has specific regulations about which reasons are acceptable; when an application can be made; what sort of process the applicant needs to go through; the length and kind of substitute service (it any); what sort of obligatory service can be substituted; and if the CO can be called up for service more than once. Most states also have special laws for times of war. The possibility of being granted legal status as a CO during wartime is more restricted in most cases. Devi Prasack’s overview for each country, published by War Resisters’ International in their “Refusing to bear arms: a world survey of conscription and conscientious objection to military service”.

The number of states that have legal rights for COs has been growing steadily. The first step has often been that those who for some reason refused to bear arms have been offered noncombatant service within the armed forces. Even when it has not been regulated by law, “the system” has in many cases allowed a transfer to a noncombatant unit. The reason could be that those in power do not want too much controversy. Court cases and jail terms have a tendency to create more focus on the question of CO and can encourage more people to follow that example, as in the USA or Germany in the 1960s and 70s.

In a number of countries the main legislative improvements for COs have in fact come as a consequence of the high number of resisters in prison. Some of these prisoners have not been granted alternative service, and others, like the total resisters, refuse all sorts of military and alternative service. Political prisoners are a political embarrassment for most states. It is a political burden domestically as well as internationally. When states make it easier for COs to perform an acceptable service, the number of resisters in prison will be reduced.

Amnesty International, peace organizations, religious communities, and others have actively lobbied for accepting COs and improving their rights.  The UN Commission on Human Rights has since 1980 produced several resolutions demanding respect for the right to CO status. In countries with a military conscription the issue of COs has been one of the most important for the traditional peace organizations.

Bibliography

Braithwaite, C. (1995) Conscientious Objection to Compulsion under the Laws. York, William Sessions Limited

Brock, P. (2006) Against the Draft. Essays on Conscientious Objection from the Radical Reformation to the Second World War. Toronto, Toronto University Press.

Hayes, D. (1949) Conscription Conflict, The Conflict of Ideas in the Struggle for and Against Military Conscription in Britain Between 1901 and 1939. London, Sheppard Press

Hayes, D. (1949) Challenge of Conscience, The story of the Conscientious Objectors of 1939-1949. London, George Allen and Unwin Limited

Mjøset, L. & Holde, S. eds. (2002) The Comparative Study of Conscription in Armed Forces. Amsterdam, Elsevier Science Ltd.

Moskos, Charles C. and Chambers J (1993) The New Conscientious Objection: From Sacred to Secular Resistance. Oxford University Press

O’Sullivan, J. & Meckler, A. M. (1974) The Draft and Its Enemies, A Documentary History. Urbana, University of Illinois Press

Pentikäinen, M. ed. (1994) The Right to Refuse Military Orders. Geneva, IPB

Prasad, D. (2005) War is a Crime Against Humanity, The Story of War Resisters’ International. London, War Resisters’ International

Tax, S. (1967) The Draft, A Handbook of Facts and Alternatives. Chicago, The University of Chicago Press.

WRI (1998-2005) Refusing to bear arms: a world survey of conscription and conscientious objection to military service. http://www.wri-irg.org/co/rtba/index.html

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Posted in In English, Nonviolence, Political comment and analysis

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