4.5 Procedure

The Commission on Human Rights... welcomes the fact that some States accept claims of conscientious objection as valid without inquiry.

...calls upon States that do not have such a system to establish independent and impartial decision-making bodies with the task of determining whether a conscientious objection is genuinely held in a specific case, taking account of the requirement not to discriminate between conscientious objectors on the basis of the nature of their particular beliefs.  

(Resolution 1998/77, OPs 2 and 3)

Table 10 indicates the information which is available about the status and composition of the body which is responsible for deciding on the recognition of individual conscientious objectors in each State which has relevant provision; and Table 11 shows, likewise for each State, the procedures which have been laid down. The relevant time limits have already been listed in Table 9.

When the application for conscientious objector status is lodged before entry into military service, there should be no bar to the jurisdiction of an independent body under the control of a civilian judge under the ordinary law

The issue of the administration of justice through military tribunals (UN Document E/CN.4/Sub.2/2005/9) prepared for the Sub-Commission on the Promotion and Protection of Human Rights by Emmanuel Decaux, paragraph 19.

In many States, the deciding bodies are firmly within, appointed by, or otherwise controlled by the Ministry of Defence. Even when they are rather more at arms length from the military, the military influence can still be decisive. Thus in Greece, despite government claims[1] that the relevant committee consists mainly of non-military personnel, only three of the five members are in fact civilian, and the function of the committee is advisory only; the definitive decision being taken by the Minister of Defence. In Poland the district draft boards which had this responsibility used to have both military and civilian members, but their procedural rules meant that they could in fact function in the absence of their civilian members.[2] However under the revised Law on Alternative Service which came into force in 2004, the membership of the deciding body became entirely civilian.

In the USA, appointment and training of volunteers for membership of some 2,000 local draft boards (officially known as Claims Boards) has continued in the years when the system has been suspended. The Local Board must consist of at least three members who are volunteers drawn from local society. However the supporting staff of the board are military personnel (reservists, national guard, military recruiters) and it is anticipated that in an emergency the mechanics of the system will in the first instance be run by the military. Conscious attempts were made during the 1980s to make the Boards more representative of the population as a whole by seeking more volunteers who were women or members of ethnic minorities and fewer who were retired members of the military or reservists (serving members of the military may not sit on the Boards, nor may they be appointed immediately on retirement), and to standardise the training given to Board members.

Sometimes, for instance in Bulgaria and the Russian Federation, there are firm rules to ensure that at least the chair of the body concerned is not a Ministry of Defence appointment. In both of these, it is stipulated that decisions will be taken by a two-thirds majority vote of the membership; elsewhere information on the precise mechanics of the decision-making process is scanty.

At the other end of the spectrum, adjudicating committees in the Netherlands before the suspension of the call-up sometimes included representatives of objectors' organisations.

Application is often made directly to the determining body itself, but sometimes is forwarded to that body by, for example the local recruitment office. Sometimes an official form is provided for the purpose; in Austria this is downloadable from the web.[3] In the event of the reintroduction of the draft in the USA a form for notifying all claims for reclassification ought to be available from all post offices. In both Austria and the USA, however, and always provided that the strict time limits have been met, the initial application may be registered without the form; it may even be notified orally in Austria, but in the USA it must be received in writing, whereupon Claim Documentation Form 22 will be issued, and must in turn be completed and returned with supporting documentation within ten days of issue.

The words application and applicant, as used in this section, refer to application to be recognised as a conscientious objector for purposes of the applicable military recruitment legislation. If an application is unsuccessful it does not follow that the applicant is therefore not a conscientious objector.

Different jurisdictions vary in the amount of detail with which the nature of the application and the supporting documentation are specified. Sometimes (Germany, Sweden) all that is required is a statement of a formal nature making reference to the wording in the legal provision. In Austria, again, the procedure is simplified still further by the required form of words being pre-printed on the form. Specific details of information or evidence required usually give some indication of the considerations which will be taken into account in deciding whether to accept the application, whether or not the applicant is required to attend for a personal interview.

Personal interviews were abolished in Denmark in 1968; Germany has phased them out since 1984; Finland followed in 1987; Austria and Sweden[4] in 1991, and Norway in 1999. Although this has usually meant that most applications are accepted without enquiry, this is not necessarily the case. Despite the simplified application procedure Austria, in particular, retains a list of conditions which can exclude the recognition of conscientious objector status. Legislation on conscientious objection in Bosnia-Herzegovina, Croatia, (Former Yugoslav Republic) Macedonia and Serbia-Montenegro, was similar from the outset; interviews were not included as routine features of the system, but checks for disqualifying circumstances were incorporated.

Acceptance without enquiry is found in its purest form under the supposedly interim arrangements in Paraguay. The conscientious objector swears a declaration and is issued on the spot with the carné de objector which, as far as is known, has the same status as other forms of documentation of military status.[5] In Finland, acceptance of applications without enquiry is accompanied by a situation in which the length of alternative service is double the basic length of military service. Many conscientious objectors feel that this is used as a form of test of the sincerity of their convictions, and complain that the result is punitive treatment of objectors. The Human Rights Committee in 2004 agreed with this view.[6] In Brazil, although the legal provisions[7] would seem to indicate that no enquiry need be made into the grounds of the conscientious objection, the detailed implementing regulations state that the military authorities can, at any time, initiate an investigation or request the presentation of documents that clarify the convictions of the petitioner.[8]

In Romania and Ukraine, interviews do not normally take place, but this is because the claims are decided solely on the basis of religious denomination. In Uzbekistan, however, where similar criteria apply, those claiming to be conscientious objectors must not only provide a certificate to prove that they belong to a religion accepted for this purpose; they must also provide convincing written and oral explanations of their personal objection.[9]

The Committee notes with concern the information given by the State party that conscientious objection to military service is accepted only in regard to objections for religious reasons and only with regard to certain religions, which appear in an official list. The Committee is concerned that this limitation is incompatible with articles 18 and 26 of the Covenant

The State party should widen the grounds for conscientious objection in law so that they apply, without discrimination, to all religious beliefs and other convictions, and that any alternative service required for conscientious objectors be performed in a non-discriminatory manner.

Human Rights Committee, Concluding Observations on the Ukraine, November 2001, UN Document CCPR/CO/73/UKR, paragraph 20.

When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs .

Human Rights Committee, General Comment 22 (July 1993), Paragraph 11.

Where there is a personal interview, this is usually so that the deciding body may investigate the genuineness of the applicant's conscientious objection - an inherently impossible task. It is therefore normal for the decision to rely heavily on proxy indicators from the applicant's personal history. In many countries, the process has gone further, and a specific list of conditions which must be met has been drawn up. Examples are given in Table 11.

Among such criteria, one with the longest history is the requirement of membership of a particular religious denomination - in fact Moskos and Chambers[10] argue that this should be seen as the first stage in the entire history of the recognition of conscientious objection. As applied in the recent past, the requirement has sometimes been exceptionally restrictive.

In Uzbekistan, under the original (1992) Law on Universal Military Service members of registered religious organisations whose religious teaching forbids the bearing of arms or service in the armed forces were exempted. In practice, however, there is no evidence that any religious group was defined as benefiting.   Even Jehovah's Witnesses, whose opposition to bearing arms is very well known, were not admitted to alternative service, apparently because they took the position that the precise action to be taken was a matter for the conscience of the individual believer.[11] Under the revised Law on Universal Military Service of December 2002, Jehovah's Witnesses are reportedly listed along with Evangelical Christians-Baptists and Seventh-day Adventists as eligible to perform an alternative service.[12]

The Committee views with concern any tendency to discriminate against any religion or belief for any reason, including the fact that they are newly established .

Human Rights Committee, General Comment 22 (July 1993), Paragraph 2.

Elsewhere, particularly in Eastern Europe, the difficulty has arisen not at the stage of recognising churches as pacifist, but with the difficulty of becoming a recognised religion in the first place.

The converse, of course, has been discrimination against those whose personal conscientious objection may have been just as deeply founded but who belonged to the religious majority. In Poland, for example, concerns have also been voiced that applicants from different religious backgrounds may be treated in a discriminatory way; draft boards in the past have explicitly stated that Roman Catholics cannot be conscientious objectors. Although these allegations are now several years old, they are consistent with figures quoted in 2004[13] which show that (in a country in which over 90% of the population consider themselves to be Roman Catholics) a proportion declining over the three years quoted from 2.5% to less than 1% of successful applications were based on religious grounds.

Jehovah's Witnesses, so often persecuted for their refusal to perform military service, have sometimes subsequently graduated into a group seen as benefiting from unfair discrimination. In the case of Brinkhof v the Netherlands,[14] the Human Rights Committee, while not finding that the complainant had directly suffered, observed that the differential treatment of Jehovah's Witnesses, who were exempted even from alternative service, was not reasonable. The Committee has also, in successive concluding observations on State Reports from Finland,[15] made similar comments about the total exemption granted there.

Above all, of course, an insistence on proof of adherence to a religious denomination discriminates against those whose conscientious objection is based upon personal convictions, not necessarily of a religious nature.

While not ruling out those whose objections are of a moral or ethical nature rather than directly derived from religious teachings, a number of States indicate that they will not accept applications where the objections are political in nature. Usually this is applied to those who make it clear that their objection is not to taking up arms in any circumstances but to particular actions or operations in which their military service might involve them. The issues posed by such selective objectors are discussed in Section 4.11.

either individually or in community with others

International Covenant on Civil and Political Rights, Article 18, Paragraph 1

Those who have served criminal sentences, or sentences of specific lengths and for specific categories of crimes may be debarred. It is particularly disturbing that in the case of Greece, this restriction applies even to a person charged with an offence, subverting the presumption of innocence.

Another very frequent disqualification is of persons who hold, or have ever held firearms licences. This is obviously seen as a test as to whether the life of the individual conforms to the conscientious principles expounded, but of course embodies the assumption that there are no circumstances in which a genuine conscientious objector might wish to possess or use a firearm. This restriction was not accepted by the Human Rights Committee in its consideration of the report of Serbia-Montenegro in July 2004.[16]

In the case of Greece the prohibition is extended to those who have at any time served in any armed forces. This is in the context that all naturalised citizens must serve three months obligatory military service. Quite apart from the question of conscientious objection, this provision directly contradicts the general principle that military obligations should not apply in more than one State which (for dual nationals) has been enshrined since 1963 in the Council of Europe's successive European Conventions on Nationality (ETS 43 and ETS 166) (to neither of which, however is Greece itself a party). Two judgments of the military courts in Athens in April 2005 (while the Human Rights Committee happened to be considering its Concluding Observations on the State Report on Greece) seemed to relax this rule in the case of those who were now conscientious objectors, but within a month the rule had been reasserted in decisions by military courts in provincial cities, as had the reluctance, on the same grounds, to recognise conscientious objection on the part of former conscripts now faced with a call-up to reserve duty, even when the original military service had been performed before 1997, when the possibility of legal recognition of conscientious objection first became available.[17]

Even were the presumed connection between criminal offences or association with firearms and the state of the person's conscience logical in all cases, the rejection of applications on these grounds effectively discounts the freedom to change ones religion or belief, as it treats past actions as an incontrovertible proof of the beliefs which the person now holds. The Jehovah's Witnesses cite one such case in Hungary in 2002, the final resolution of which was pre-empted by the abolition of conscription. A reformed criminal, now a Jehovah's Witness, was initially refused recognition as a conscientious objector, but this decision had been overturned on appeal to the courts.[18] The nature of the past criminal behaviour is not specified, but given the legislation (see the Table) the court would not have been able to make such a ruling if severe crimes of violence had been in question.

The Committee observes that the freedom to have or to adopt a religion or belief necessarily entails the freedom to choose a religion or belief, including the right to replace one's current religion or belief with another.

Human Rights Committee, General Comment 22 (July 1993), Paragraph 5

Finally there are cases where it is stipulated that applications will be rejected because of simple failure to observe the required formalities such as failure to attend a hearing, inadequate documentation, not meeting deadlines for application. Practice differs as to whether technical irregularities lead to definitive rejection or whether reapplication is possible. In Greece, the National Council on Human Rights and the Jehovah's Witnesses report that obtaining the necessary certification in time is often very difficult, or even impossible, due to bureaucratic delays which are no fault of the candidate,[19] and that this has been the most frequent cause for applications to fail. However after the appeal by Antonios Apergis to the Council of State was upheld in Decision 284/2003, the Ministry of National Defence issued a circular stating that when an application is rejected due to a mere formality, there is a right to file another application for civilian service.[20]

An applicant shall have the right to appeal against the decision at first instance

Council of Europe Committee of Ministers Recommendation R(87)8, paragraph 6.

As can be seen from Table 12, States vary widely in the provisions they make for appeals against decisions to refuse recognition of conscientious objector status, and in whether such appeals are made to a body independent of the original determining body. Moreover, unless that body provides a statement of its findings the effectiveness of appeal procedures must be very reduced. Some States do have clear stipulations in the latter regard.

The Armenian Law (Article 11) provides that the applicant receives a protocol of the sitting with reasons for rejection within ten days. He can appeal within ten days to the national draft commission and thereafter within a month in court. In Bulgaria a formal motivation of the decision must be issued within 30 days; it is appealable in the first instance to the Ministry of Labour and Social Policy which may order a reconsideration if the correct procedures have not been followed.[21] Other accounts refer to the possibility of appeal to an administrative court.22

Under the Military Selective Service Act in the USA, if the Board rejects the claim, the reasons must be stated in writing, and the rejection will be accompanied by a notification of the rights of appeal. An appeal may be made within fifteen days to the District Appeal Board. (This covers the area of a Federal judicial district, meaning that there is usually more than one to a state.) Before the District Appeal Board the applicant again may choose to appear in person and may be accompanied by an advisor, but no witnesses. If the District Appeal Board rejects the application, but is not unanimous in this decision, a further appeal, and a request for a personal appearance, may be made, again within fifteen days, to the National Appeal Board, which is directly appointed by the President. At each stage, the reasons for a rejection have to be set out in writing. Throughout the procedure applicants have the right to examine their personal file held at the offices of the Local Board.

Of course an appeal process is only useful if the decision on the appeal is implemented. In Greece not only are appeals to the Council of State very costly in legal representation, but the decisions of the Council of State do not in themselves overturn convictions, but merely recommend that these should be reconsidered.

  • [1] First Periodic Report under the International Covenant on Civil and Political Rights (UN Document CCPR/C/GRE/2004), paragraph 683
  • [2] Horeman, B. and Stolwijk, M. (1998), Refusing to Bear Arms, War Resisters International, London.
  • [3] Response by the Austrian government to the OHCHR questionnaire, 2003.
  • [4] Sweden retained the possibility of interviewing applicants who had already enlisted (see p 59 above), and also a provision that no application may be rejected (an exceptional circumstance in itself) if the applicant has not had the opportunity to offer verbal viva voce information about the matter. Act on Liability for Total Defence Service, 1809/1994, paragraph 3.20.
  • [5] Rojas, F. (2001), El Servicio Militar Obligatorio en Paraguay: entre la contestación social y la inercia de las instituciones del Estado autoritario, paper delivered to the Panel on Military Service, Center for Hemispheric Defense Studies, REDES 2001 (Research and Education in Defense and Security Studies), Washington, DC May 22-25, 2001.
  • [6] Concluding Observations on the Fifth Periodic Report of Finland (UN Document CCPR/CO/82/FIN), paragraph 14.
  • [7] Law on Alternative Service, 8231/1991, Article 3.1.
  • [8] Decree Number 2681/1992, Article 7.
  • [9] General Counsel of Jehovah's Witnesses, evidence submitted to the OHCHR, February 2005
  • [10] Moskos, C.C. and Chambers, J.W, The Secularisation of Conscience in Moskos and Chambers (Editors), The New Conscientious Objection, from sacred to secular resistance. OUP, New York/Oxford, 1993 pages 3 - 20.
  • [11] Corley, F., Uzbekistan: Jehovah's Witnesses Criticise Conscientious Objector Trials, (Keston News Service, 6th April 2001) (www.starlightsite.co.uk/keston/kns/2001/010406UZ-01.htm)
  • [12] Uzbekistan introduces alternative military service Radio Free Europe - Radio Liberty newsline, 2nd June 2003  (www.rferl.org/newsline/2003/06/2-TCA/tca-020603.asp)
  • [13] Poland, Fifth State Report under the International Covenant on Civil and Political Rights (UN Document CCPR/C/POL/2004, paragraph 312.
  • [14] Communication 402/1990; see Solari-Yrigoyen, H (2004), El Comite de Derechos Humanos y la objeción de conciencia al servicio militar, in Ando, N. (Editor)  Towards Implementing Universal Human Rights:  Festschrift for the Twenty-Fifth Anniversary of the Human Rights Committee, (The Raoul Wallenberg Institute Human Rights Library, 18 ), Martinus Nijhoff, Leiden, pages 166 - 167.
  • [15] UN Documents CCPR/C/79/Add.1 (1998), paragraph 21 and CCPR/CO/82/FIN (2004), paragraph 14.
  • [16] As reflected in paragraph 21 of its Concluding Observations (UN Document CCPR/CO/81/SEMO (2004)).
  • [17] Amnesty International Press Release EURO 25/004/2005, 1st April 2005; War Resisters International, CO Alert Greece; courts go mad: new sentences against conscientious objectors, 18th May, 2005.
  • [18] General Counsel of the Jehovah's Witnesses, Reply to OHCHR questionnaire, August 2003.
  • [19] In replies to the questionnaire from the OHCHR, 2003.
  • [20] General Counsel of Jehovah's Witnesses; evidence to the Human Rights Committee on Greece, February 2005.
  • [21] Dijkman, H. Conscientious objection in BulgariaThe Right to Refuse to Kill, Summer 2005, EBCO (European Bureau for Conscientious Objection), Brussels.
  • [22] Stolwijk, M., (2005) The Right to Conscientious Objection in Europe Quaker Council for European Affairs, Brussels