The fact that at one time a person does not have a conscientious objection to military service does not invalidate the subsequent emergence of such an objection. Quite apart from any dramatic change of beliefs, it must be understood that most forms of conscientious objection are not strict creeds, but beliefs no less fundamental because they develop and crystallise over time.
This also means that a conscientious objection may first be identified at different stages within an individual's relationship with the military. A person may be aware of an objection before ever being called upon to register or enrol. The objection may emerge only during the course of the recruitment process. It may not take shape until the objector has already embarked on obligatory military service, or has enlisted voluntarily. It may develop when the objector has completed military service, and is subject to reserve duties.
The best practice is clearly that conscientious objection should be recognised equally in all of these situations. A rare instance where this happens is Germany, where the same legislative provisions and to a large extent the same procedures apply before call-up, during compulsory military service, for regular
serving members of the armed forces, and for reservists. Elsewhere, different issues can arise at different stages in the process, as discussed in the five sub-sections below.
4.3.1 At First Registration
As is clear from the provisions of the new Chilean Law on Military Service already quoted, advance registration of liability for military service is not essential. A selection procedure, or indeed a direct call-up, can be operated on the basis of information already held on citizens or residents - in the case of Chile the necessary information is to be supplied by the Civil Registry. In those cases where pre-registration does exist, however, the question arises of whether arrangements exist at this stage for conscientious objectors to apply for recognition as such, and thus exclusion from the register
.
In the USA and the Netherlands, as mentioned already, although call-up for obligatory military service has been suspended, the process for registration of those eligible still continues. In both States, however, the suspension of inductions was accompanied by a change in procedures which no longer require conscripts to undergo a medical examination at the time of registration, but also mean that no applications for exemption or reclassification
are entertained at this stage; indeed the regulations in the USA have been changed so that only once the induction orders have been issued may notice of a claim for reclassification be lodged. The significance of this is that no one liable to register may legally refrain from doing so on grounds of conscientious objection. Nor is there any way to be officially classified as claiming conscientious objector status at the time of registration, which had in fact previously been the obligatory time for lodging such a claim. The result is that those whose consciences will not permit them to register have no choice but to break the law.
4.3.2 Before call up
It is a common requirement that applications for classification as a conscientious objector must be lodged at some stage before the commencement of military service. Table 9 gives an indication of some of the specific restrictions which apply. Sometimes the application must be made within a certain length of time after medical examination, this, as has been noted above, having the effect of excluding anyone who can be exempted on medical grounds from claiming conscientious objector status. Sometimes the rule is that it must be made a certain length of time before induction is due. Sometimes both apply, so that there may be a narrow window
of time in which the application can be made. Sometimes there are other limitations; under the draft regulations in the USA, not currently being implemented, notice of any claims for reclassification
(i.e. exemptions or deferments) must specify all claims which are to be brought; different grounds cannot be tried in sequence.
One very important issue which affects all those who apply for recognition of conscientious objector status before induction into the military is whether the call-up notice is suspended, and whether they are treated as civilians while their application is processed.
Most countries which have a procedure for the recognition of conscientious objectors either undertake to reach a final decision on the claim before the date of call-up (hence the very early deadline for applications in for example the Russian Federation), or agree to the suspension of call-up during the process, including any appeals. In the USA, even a conscientious objector whose claim had been rejected, but who had reported to the induction ceremony itself only in order to restate his refusal would face prosecution in a civilian court, not having taken the military oath.
Greece is the glaring exception in this respect. There applicants whose cases have not been resolved by the date originally set for call-up are obliged to report to the military, become liable to military charges of insubordination for offences related to the nature of their conscientious objection (eg refusal to wear a uniform), and may be required to remain in barracks for whatever length of time intervenes before their cases are heard lest they face the considerably more serious charge of desertion.
It is perhaps not surprising that most States which do not have any legal recognition for conscientious objection but which deal with numerous cases tend to use the military justice system. This is for example the case in both Israel and Turkey. In Singapore, too, it is in the Armed Forces Detention Barracks that convicted conscientious objectors serve their sentences. The Republic of Korea for many years followed a similar policy, but in 2001 the practice changed, and subsequently conscientious objectors have been tried in civilian court and, if sentenced to imprisonment, have served their sentences in civilian prisons.[1]
4.3.3 During obligatory military service
aware that persons performing military service may develop conscientious objections...
Commission on Human Rights, Resolution 1998/77, preamble
As has been indicated in Table 9, Germany is joined by a small number of other States in accepting applications for reclassification as conscientious objectors from persons currently serving obligatory military service.
Sometimes such applications are subject to closer examination than are those made before call-up. In Sweden, whereas an application made before the applicant has been enlisted or within six months from the day he or she has obtained knowledge about a decision on enlistment must be approved without further investigation, unless there are special reasons for investigating the applicant's attitude to the use of weapons against another person... If an application has been made later (it) must also contain a statement about the conditions the applicant quotes as a support to the statement that he or she has made regarding the use of weapons against another person
.[2] A similar provision applies in Denmark.
On the other hand, rules requiring the accelerated consideration of such in-service applications are in place in Germany and Norway, and were in Slovenia. In the case of Norway it is stipulated that all duties involving the bearing of arms are suspended upon application for recognition as a conscientious objector pending a decision on the application, which must be made within four weeks; in Sweden the entire service is postponed pending a decision.
4.3.4 Among those who have joined the military voluntarily.
The Assembly... recommends that the Committee of Ministers invite those member states that have not yet done so to introduce into their legislation... the right for permanent members of the armed forces to apply for the granting of conscientious objector status.
Council of Europe Parliamentary Assembly Recommendation 1518 (2001), paragraph 5 ii
In very few States is it in practice possible for those who have joined the military voluntarily to be released from their obligations should they subsequently develop a conscientious objection, and in even fewer is there a right enshrined in legislation. The good example of Germany, where the legal provisions apply without time limit or other distinctions, has already been mentioned. In the Netherlands, too, the Law on Conscientious Objection applies to volunteers as well as conscripts, and therefore remains in force despite the suspension of obligatory military service.
Among States which are no longer calling up for obligatory military service, Slovenia's Military Service Law of 1995 would also appear to distinguish between conscripts, whose military duties were suspended immediately on lodging a claim of conscientious objection, and what are translated as national servicemen
who remain subject to military duties while their claim is being processed; certainly it was interpreted in this way by the Council of Europe in 2001.[3] According to Slovenia's 2003 submission to the OHCHR: The commission must decide on an application within six months as of the date the application was submitted and within three months, if the application was submitted by a soldier performing military service... During the period of processing the application, all duties relating to military service of a conscript and national serviceman who already concluded his military service are suspended
(with exceptions in certain very specific circumstances.) The processing of the application filed by a national serviceman during his military service has no effect on the discharging of duties relating to military service.
The 2001 Council of Europe report also quoted the Czech Republic and Latvia as recognising the regular serviceman's right of conscientious objection to military service
, although no details of the practical implementation of this recognition are known.[4] It is known that before the suspension of obligatory military service the Czech Republic, like Austria, had different time limits for applications from different categories of conscientious objector; conscripts had to apply within thirty days of call-up and could not do so once they had commenced service, while reservists benefitted from an annual window
during the month of January in which they might lodge claims. By contrast, the Council of Europe report implied that there were no such provisions in Denmark or Norway, whereas other sources[5] report that they do exist.
In the USA a detailed procedure was set out in Department of Defense Directive Number 1300.6 of 1962 for the honourable discharge or transfer to non-combatant duties of a serving member of the armed forces who has a firm fixed and sincere objection to participating in war in any form or the bearing of arms, by reason of religious training or belief
. Each branch of the armed forces has its own specific regulations drawn up under the overall authority of and to a large extent restate the principles listed in Directive 1300.6.
States which do not currently impose obligatory military service often claim that this means that the issue of conscientious objection is irrelevant. The experience in the USA since 1962 disproves this. Admittedly from within armed forces more than a million strong, it is believed that in the years from 1965 to 1973 inclusive, there were between 17,000 and 18,000 applications, the annual number peaking at 4,381 in 1971.[6] It is not stated what proportion were accepted in these Vietnam War years, but in the more peaceful conditions of the mid-1980s there was still a steady flow of applications; between 1985 and 1991 inclusive, 841 applications resulted in a complete discharge.[7] A much smaller number were reallocated to noncombatant status; 29 in 1985, declining to 7 in 1987, since when statistics have not been available. In this period, the success rate of applications was in the region of 80% in the army, 76% in the navy and 73% in the marines.[8]
Paragraph IV A (Policy
) of Directive 1300.6 specifies that its provisions are not available to those whose beliefs at the time of entering military service satisfied the requirements for classification as a Conscientious Objector pursuant to Section 6(j) (of the Act), and he failed to request classification as a Conscientious Objector under the Selective Service System
, or whose request for classification as a Conscientious Objector was denied on the merits by the Selective Service System and (whose new request) is based on essentially the same grounds, or supported by the same evidence
. However, if the beliefs crystallized
only after induction the claim can be entertained. They thus were available to conscripts as well as to professional
members of the military, and reservists would be in future. However they do not represent any extension to the very narrow window
during which pre-entry applications may be lodged.
Subject to the above limitation, the Directive gives detailed advice regarding the criteria to be used in assessing a claim of conscientious objection, much of which emphasises the importance of treating each individual case on its merits, without prejudices regarding the nature, rather than the depth and sincerity of the beliefs, on which it is based, the degree to which they accord with the tenets of any church or other religious group to which the applicant is affiliated and their effect upon his (or her - because they also apply to female members of the armed forces) political opinions, although these without the basis in belief would not be acceptable grounds.
The procedures to be followed are described in minute detail. They include interviews with a military chaplain and a psychologist, hearings at which the applicant may bring forward evidence and witnesses, and be represented by counsel, rules regarding the appointment of an investigating officer
who must be at a certain distance from the immediate chain of command above the applicant, availability of reports made at all stages of the process, and opportunities given to the applicant to rebut them, and treatment of the applicant during the process. Section VI I states: To the extent practicable under the circumstances, during the period applications are being processed and until a decision is made every effort will be made to assign applicants to duties which will conflict as little as possible with their asserted beliefs.
However an applicant shall be required to comply with active duty or transfer orders in effect at the time of his application or subsequently issued.
The biggest problem with the procedures, however, is that, relying on no authority beyond the regulations, they can be altered or withdrawn at any time. Experience has shown that this is not an idle fear. At the outset of the First
Gulf War in 1991, between 1500 and 2000 claims had been lodged by serving members of the military and reservists, when a presidential stop-loss
order was issued, which cancelled all pending discharges from the military on any grounds, and halted the consideration of any further applications. It was left at the discretion of the immediate chain of command whether applications for conscientious objector status were treated as having failed or were simply frozen
and, in the latter case, the extent to which the conscience of the applicant was accommodated in the interim. In most cases, it is reported, mutually satisfactory arrangements were arrived at, but at least 42 Marines who persisted in declaring themselves conscientious objectors and resisting active deployment were jailed.
Chapter 1-7, Section a(5)(c) of the Army Regulations, which are unusual in adding substantively to Directive 1300.6, illustrates the military reasoning. Reasons for believing that an application may be insincere include: Applicants may have sought release from the Army through several means simultaneously, or in rapid succession (medical or hardship discharge etc.) They may have some major commitments during the time their beliefs were developing that are inconsistent with their claim. They may have applied... shortly after becoming aware of the prospect of undesirable or hazardous duty, or having been rejected for a special programme. The timing... alone, however, is never enough... to support a disapproval. These examples serve merely as indicators that further inquiry as to the person's sincerity is warranted. Recommendations for disapproval should be supported by additional evidence beyond these indicators.
The United Kingdom's procedures for granting compassionate discharge for those who develop a conscientious objection are described in detail by Stolwijk.[9]
In other cases, the possibilities which are cited for professional members of the armed forces often do not relate to conscientious objection as such. Thus in Japan the constitutional position regarding the armed forces means that it is possible to cancel a contract of employment in the military at any time without penalty. Similarly Poland, in its Fifth Periodic Report under the International Covenant on Civil and Political Rights[10] cited provisions whereby serving members of the armed forces who became conscientious objectors could obtain early release from their contracts. These provisions however were available to all, whatever their reason for wanting release, and moreover entailed refunding the costs of training at a rate which for many would be prohibitive. Ironically, those who are discharged for misconduct benefit in this respect from more favourable conditions. There is apparently a similar refunding provision in Germany; Stolwijk reports that a release on the basis of conscientious objection is treated as a release on someone's own initiative
.[11] Despite the clear legislative recognition of the right of conscientious objectors to be released from military service there is thus more than a suspicion that conscientious objection is actually being accommodated rather than recognised; it is being treated as a matter of inclination rather than a moral compulsion equivalent in its own way to the grounds for being invalided out
.
4.3.5 Among Reservists
The law may also provide for the possibility of applying for and obtaining conscientious objector status in cases where the requisite conditions for conscientious objection appear during military service or periods of military training after initial service
Council of Europe Committee of Ministers Recommendation R(87)8, paragraph 8
The widespread lack of provision for conscientious objection for those who have already entered military service often also extends to reservists. Not only is this subject to the same criticism as any other time limits, it can lead to peculiar injustices of its own. The reserve obligations of former conscripts may continue although obligatory military service is no longer imposed. Indeed reservists may have undertaken military service before the right to conscientious objection was recognised. Conscientious objectors among them may therefore never have had the opportunity to apply for recognition. This is a particular concern in Greece and in Serbia-Montenegro (see pages 87 - 88).
Good examples of different ways in which the special situation of reservists has been allowed for are provided by Slovenia and Moldova. In the former, although obligatory military service was suspended with effect from 2003 the reserve obligations of former conscripts will extend until 2010. Reservists are however permitted to apply for recognition as conscientious objectors.[12] Although not accepting applications during the course of military service Moldova, too, has a provision whereby former servicemen may apply for transfer to the Alternative Service Reserve.[13]
- [1] MINBYUN (Lawyers for a Democratic Society), Korea Solidarity for Conscientious Objection, and War Resisters International, Briefing Paper on Conscientious Objection and Human Rights Issues in the Republic of Korea, prepared for the 60th Session of the UN Commission on Human Rights, 2004, page 12
- [2] Act on Liability for Total Defence Service, 1809/1994 paragraphs 3.17 and 3.18.
- [3]
Exercise of the right of conscientious objection to military service in Council of Europe member states
(Report of the Committee on Legal Affairs and Human Rights); Council of Europe Document 8809(Revised), 4th May /2001. - [4] Stolwijk, M., (2005) The Right to Conscientious Objection in Europe Quaker Council for European Affairs, Brussels
- [5] Ibid. and Danish Institute for Human Rights, Response to questionnaire from OHCHR, 2003.
- [6] Chambers, J.W. (II) (1993)
Conscientious objectors and the American state from colonial times to the present
, in Moskos, C.C. and Chambers, J. W.(II)(Editors), The New Conscientious Objection, from sacred to secular resistance, Oxford University Press, New York/Oxford, pages 23 - 46. - [7] Noone, M. F. Jr. (1993),
Legal aspects of conscientious objection: a comparative analysis
in Moskos and Chambers, as above, pages 177-195. - [8] Eberly, D. J. (1993)
Alternative Service in a future Draft
, in Moskos and Chambers, as above, pages 57-65. - [9] Described in detail in Stolwijk, M., (2005) The Right to Conscientious Objection in Europe Quaker Council for European Affairs, Brussels
- [10] UN Document CCPR/C/POL/2004/5, paragraph 331.
- [11] Stolwijk, M., (2005) The Right to Conscientious Objection in Europe Quaker Council for European Affairs, Brussels
- [12] Response by Slovenia to the OHCHR questionnaire, 2003.
- [13] Article 29 of the Law on Alternative Service, (633/1991).