Source: Johansen, J. (2009). Conscientious Objection: Legal Rights, in The Oxford international Encyclopedia of peace. N. Young. Oxford, Oxford University Press. 1: 461-463.
Buy the Book here.
Conscientious Objection (CO) is to refuse participation in a system of obligatory service when one is conscientiously opposed to the service. In most cases a conscientiousthe objector refuses to performdo military service, but some individuals may also rejectrefuse any form of required alternative to carrying arms. ManyFrequently 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 athe military uses to recruit people, there have always been individuals whothat have refused to take part. The majority of COsConscientious Objectors (Cos), refuse beforeprior to the start of their service, but somemay also change their minds while serving. These objectorsThey may have joined the army for economic reasons; under the pressure 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 objections during their service, some incurringincluding the death penalty. The legal right to refuse service after one has joined the army is in most countries is either very limited or nonexistent.
Laws regulating the rights to conscientious objection operatebe identified on several levels. In the Universal Declaration on Human Rights, Article 4 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 between slavery and military service areis so obvious that, when the European Convention on Human Rights (built on the text of the Universal Declaration) was written, the authorsthey added to Article 4 that “No one shall be required to perform forced or compulsory labour” and that “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 its signatories, who doand hence they did not want any CO to use the Universal Declaration on Human Rights to argue for ahis or her right to refuse service. This insistence of the right of EC 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, the International Covenant on Civil and Political Rights, and Article 9 of the European Convention on Human Rights), and seen as a legitimate exercise of this right. The former UNUnited Nations Commission on Human Rights has reiterated this right in several resolutions beginning insince 1987.
At the national state-level the laws granting CO status can be categorized on the basis of based on the reasons accepted for achieving it.CO status. The oldest and largest category recognizes includes those objectors who apply because are accepted for reasons of religious beliefs. Some faith communities—among them the Quakers, Mennonites, Brethren, and Baha’i—follow are based on a pacifist interpretation of their holy texts, and. communities are examples of denominations that demand and/or encourage enjoin their members not to do military service. Others, like Jehovah’s Witnesses, refuse because they regard the Kingdom of God as their government, and refrain from saluting the flag of any country, serving in its army, or doing alternative service; the U.S. Supreme Court has long issued a series of landmark First Amendment rulings that confirmed 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 on the basis of due to religious faith remains, and hence a legal CO status, are still today the most frequent types of CO law.
Though neither refused military service personally, inspired by God, Leo Tolstoy and Mohandas Gandhi, inspired by religious belief, 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. The power of non cooperation with the state inspired many more than the religious resisters. As a consequence, parliaments in many liberal democracies, many parliaments over time slowly reformed theirthe laws, permitting the rightsame legal rights to conscientious objection to nonreligious pacifists, who constitute the second category of those who refuse to use violence of any sort as a matter of principle.
Liberal countries in Europe and to a lesser degree in North America, however, experienced a wave of socialist pacifism in the decades before World War I. Sympathy grew for those who refused to take up arms against their “brothers” and “comrades” from other states (although they did not necessarily renounce revolutionary violence or “class war”). The combination of hundreds imprisoned and the ascendance of liberal and leftist parliaments created a situation in which new legislation permitting even more categories of CO status was passed. Such patterns were repeated late in the twentieth century: the act of sending more people to prison creates pressures on governmentslegislative bodies to accept more COs. Some countries have allowedexpanded the legal rights to CO status forto include individuals with profound philosophical or moral objections,reasons, whether or not religious, or pacifist.
In addition to religious and principled pacifist grounds for objection, more reasons have been accepted in theThe most liberal states have continued to expand grounds for objection in recent decades. Moral positionsreasons 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 owingdue 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 do not want to serve in the occupied territories, or the West Bank or other areas of Palestine.
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 Prasad’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 of some sort 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 conscientious objection,the question of CO and can encourage more people to embrace it,follow that example, as happened in the United StatesUSA or Germany in the 1960s and 1970s. 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, total noncooperators,like the total resisters, refuse any sortall sorts of military orand alternative service. Political prisoners are a political embarrassment for most states, a. 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 governments to acceptfor accepting COs conscientious objectors and to improveimproving 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 military conscription the issue of COs has continued to bebeen one of the most important for the traditional peace organizations.
Braithwaite, Constance. Conscientious Objection to Various Compulsions under British Law. York, U.K.: William Sessions, 1995.
Brock, Peter. Against the Draft: Essays on Conscientious Objection from the Radical Reformation to the Second World War. Toronto: University of Toronto Press, 2006.
Hayes, Denis. Challenge of Conscience: The Story of the Conscientious Objectors of 1939–1949. London: Allen and Unwin, 1949.
Hayes, Denis. Conscription Conflict: The Conflict of Ideas in the Struggle for and against Military Conscription in Britain between 1901 and 1939. London: Sheppard Press, 1949.
Mjøset, Lars, and Stephen van Holde, eds. The Comparative Study of Conscription in the Armed Forces. Amsterdam and New York: JAI, 2002.
Moskos, Charles C., and John Whitelaw Chambers II. The New Conscientious Objection: From Sacred to Secular Resistance. New York: Oxford University Press, 1993.
O’Sullivan, John, and Alan M. Meckler. The Draft and Its Enemies: A Documentary History. Urbana: University of Illinois Press, 1974.
Pentikäinen, Merja, ed. The Right to Refuse Military Orders. Zürich: International Peace Bureau, 1994.
Prasad, Devi. War Is a Crime against Humanity: The Story of War Resisters’ International. London: War Resisters’ International, 2005.
Tax, Sol. The Draft: A Handbook of Facts and Alternatives. Chicago: University of Chicago Press, 1967.
War Resisters’ International. (1998-2005) Refusing to Bear Arms: A World Survey of Conscription and Conscientious Objection to Military Service. At http://www.wri-irg.org/co/rtba/index.html
Leave a Reply