4.10 The situation in time of war

the right to freedom of thought, conscience and religion (which includes the freedom to hold beliefs) is far reaching and profound ... The fundamental character of these freedoms is also reflected in the fact that this provision cannot be derogated from, even in time of public emergency

Human Rights Committee, General Comment 22 (July 1993), Paragraph 1

Freedom to manifest one's religion and beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.

International Covenant on Civil and Political Rights, Article 18, Paragraph 3

(this) is to be strictly interpreted: restrictions are not allowed on grounds not specified there, even if they would be allowed as restrictions to other rights protected in the Covenant, such as national security.

Human Rights Committee, General Comment 22 (July 1993), Paragraph 8

A remarkable number of legal provisions governing military service and conscientious objection prove on inspection not to apply in the event of war. The majority of the countries where obligatory military service has ceased to apply in recent years have in fact merely suspended the relevant legislation in time of peace. This is certainly the case, for example, in Belgium, the Czech Republic, France, Hungary, Italy and Spain. In the USA and the Netherlands, this is underlined by the continuing obligation on those eligible to register (see page nn); this is also proposed from 2007 when the call-up for obligatory military service in Romania will cease.

As has been discussed already, the Act implementing the right to conscientious objection in the Netherlands remains valid in all circumstances. In the USA the relevant provisions are contained in the legislation the implementation of which has been suspended, so would automatically be covered by the lifting of the suspension. In Australia, where no conscientious objection provisions are applicable in time of peace, a wartime reintroduction of obligatory military service would be done under the original Defence Act of 1903 and the procedures set out in that Act would apply. Part IV includes provision for conscientious objector tribunals, whose decisions can be appealed to the administrative appeals tribunal for review and from there to the federal appeals court on questions of law only. Similarly, in Italy and the Czech Republic it has been made explicit that the provisions of the legislation concerning conscientious objection would again be applicable in time of war.

More information is needed on the current status of the legislation concerning conscientious objection in the other States which have suspended obligatory military service. If it too has not simply been suspended, but has been repealed outright, the implication is that, whereas obligatory military service could be reactivated at any time, provisions for conscientious objection would require new legislation.

Even more disturbing are indications that in some States the procedures governing the treatment of conscientious objection apply only in time of peace. This issue emerged in Finland's 2004 State Report under the ICCPR. Such relatively liberal features as the acceptance for non-military civilian service on the basis of a simple declaration of conscientious objection are explicitly applicable only in time of peace, as is the complete exemption of Jehovah's Witnesses who reach the age of 29 in good standing. Significantly, exemption on medical grounds may be given for peace time only or for both peace and war, showing that the distinction is careful and deliberate. In its concluding observations the Human Rights Committee recommended: The State party should fully acknowledge the right to conscientious objection and, accordingly, guarantee it both in wartime and in peacetime.[1]

The Greek government has indicated that alternative service for conscientious objectors would be suspended in time of war and replaced by unarmed military service.[2] In Poland, too, under the 1999 Law on the Obligation to Defend Poland, the alternative service system is suspended in time of war. This would affect not just conscientious objectors who are facing call-up, but many who have previously gone through the system and have been transferred to the reserve with or without performing alternative service. Those who have been exempted military service (eg ministers of religion and evangelising Jehovah's Witnesses who reach the age of 28) are also thereafter put on the reserve list, which in practice this involves no obligations in time of peace but theoretically makes them liable to some sort of military service in time of war.

In both Germany and Sweden the provisions even for civilian alternative service are seen in the context of what is translated as holistic defence. In particular no time limit to civilian service exists in time of war, and conscripts may be allocated without right of appeal to tasks which some may consider dangerously militarist, including for example in Germany mine-clearance.[3]

It is illogical that the rights of conscientious objectors should be restricted more thoroughly in time of war than in time of peace. As the core of conscientious objection is the unwillingness to set out willingly to take other lives it is likely that any objections will be stronger, not weaker in time of war.

It will be noted that in many cases the stipulated penalties for refusing military service or for other offences listed in Table 7 are longer in time of war. The same can also apply to penalties related to the performance of civilian service. In Sweden, for instance, a conscript who intentionally deviates or fails to report for military, civilian or general service, refuses or neglects to obey a foreman's or other supervisor's order or in any other way disregards what is incumbent upon him or her during the service, will be sentenced, if the deed is liable to result in severe harm for the training or the service generally... to fines or imprisonment for up to one year, but if this happen during increased readiness, the offender will be sentenced, if the crime... is considered as being severe, to imprisonment for at least six months and up to four years. (10.2)

  • [1] UN Document CCPR/CO/82/FIN (2004), paragraph 14.
  • [2] CCPR/C/GRC/2004/1, paragraph 687
  • [3] War Resisters International, CO Alert Number GER14755, 12th September 2005