3. International Standards on Conscientious Objection

The developing international legal and political standards on conscientious objection are largely derived from the guarantees of the freedom of thought, conscience and religion first enshrined in Article 18 of the Universal Declaration on Human Rights then reproduced, also in Article 18, in the International Covenant on Civil and Political Rights (ICCPR). There was however no specific reference to conscientious objection in Article 18, nor in the parallel Articles in regional human rights instruments: Article 8 of the African Charter on Human and Peoples' Rights; Article 12 of the American Convention on Human Rights; Article 9 of the European Convention on Human Rights. The words appeared in the ICCPR only in Article 8, where alternative service for conscientious objectors was lumped together with military service as an exception to the prohibition of forced labour.

In 1993, however, the Human Rights Committee which had been set up to oversee implementation of the International Covenant issued a General Comment on Article 18, which included the most authoritative fundamental statement yet of the right:

Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under article 18. In response to such claims, a growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service. The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right 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... (General Comment 22, Paragraph 11).

By the time of General Comment 22, the issue of conscientious objection had found its way on to the political agenda of the United Nations, initially through General Assembly Resolution 33/165 (1978), which called upon states to grant asylum to persons whose claim was based on a conscientious objection to service in military or police forces used to impose apartheid. Following the receipt from the Sub-Commission on the Prevention of Discrimination and Protection of Minorities (as it then was), of the detailed Eide/Mubanga-Chipoya report,[1] the UN Commission on Human Rights had then, in its Resolution 1987/46, called upon States to recognize that conscientious objection to military service should be considered a legitimate exercise of the freedom of thought, conscience and religion.

Since 1993, at the UN level, the issue has advanced in parallel through the jurisprudence of the Human Rights Committee[2] and resolutions of the Commission on Human Rights. The various recommendations of the 1987 Resolution and subsequent Resolutions in 1989, 1993, and 1995, were drawn together in Resolution 1998/77, which has been reaffirmed by subsequent Resolutions in alternate years (2000/3, 2002/45 and 2004/35). An important contribution to the legitimacy of their recommendations has been that all these Resolutions have been passed without a vote, and the number of co-sponsors has steadily increased reaching 38in 2004. The reports of some of the mechanisms appointed by the Commission, notably the Working Group on Arbitrary Detention and the Special Rapporteur on the Freedom of Religion or Belief, have also helped to reinforce progress on the issue.

At the regional level there has been most progress in Europe, where the impetus towards consolidating and developing the standards for conscientious objection was Recommendation R(87)8 of the Council of Europe Committee of Ministers. The issue was subsequently taken up, in the Report of the Conference (as it then was) on Security and Co-operation in Europe Human Dimension Implementation Meeting in Copenhagen in 1990, in the Charter of Fundamental Rights of the European Union in 2000 and was finally reaffirmed in recommendation 1581/2001 of the Council of Europe Parliamentary Assembly.

Stipulations regarding legislation on conscientious objection have subsequently been included in the accession criteria for new members of the Council of Europe, and action in monitoring progress on these criteria has been a significant tool in moving the issue forward. Particularly worthy of mention in this respect is the conference which the Council of Europe sponsored in Sarajevo, September 2004, which brought together representatives of objectors organisations and governments in all the States of South-Eastern Europe except Slovenia.

The Human Rights Committee's General Comment Number 22 and the Commission on Human Rights Resolution 1998/77 outline a number of principles regarding the recognition and implementation of the right to conscientious objection to military service. Together with other statements from these and other international bodies these are quoted as relevant in the analysis of practice which follows.

  • [1] Eide, A.and Mubanga-Chipoya, C.L.C, Conscientious objection to military service, (Report prepared in pursuance of resolutions 14 (XXXIV) and 1982/30 of the Sub-Commission on Prevention of Discrimination and Protection of Minorities), 1985.
  • [2] see Hanski, R. and Scheinin, M. (2003), Leading Cases of the Human Rights Committee Institute for Human Rights, Abo Akademi University, Turku, Finland and 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 155-172. For a full background explanation of the different UN bodies, see Miles, E. A Conscientious Objectors Guide to the UN Human Rights System, published jointly by the Quaker United Nations Office and War Resisters International, 2000.