4.2 Legal recognition does not define the existence of conscientious objection

Conscientious objection exists whether or not there is a procedure for recognising individuals as conscientious objectors. Indeed, an objector need not even have heard of the concept in order to fulfil the criteria. If in the State in question there is no legal provision for conscientious objection, or even if the objector is unaware of any provision which exists, there is no incentive to make formal application to the recruiting authority on those grounds. The lack of complaints does not mean that the rights of potential conscientious objectors are not being seriously violated, simply that they have no encouragement to believe that this is an enforceable right and are fearful of the consequences of asserting it. Those who have a conscientious objection to military service are therefore more likely to seek other ways of avoiding the liability and will usually accept without further qualification any situation where they are not called upon to perform military service, for whatever reason. In Turkmenistan, for example, despite their deep-seated objection to military service, Jehovah's Witnesses register and submit to medical examination. Those who are exempted on health grounds or because of family commitments do not announce their refusal to serve on grounds of conscience, as such an announcement usually leads to immediate prosecution.[1]

In the absence of any legislative provision, evidence of a culture of evasion or avoidance of compulsory military service may therefore be an indicator of undeclared conscientious objection. This appears to have been the case in both Brazil and Paraguay before they emerged from military rule in the late 1980s - Brazil in 1985, Paraguay in 1989 - although among the many human rights abuses reported the restriction of the freedom of thought, conscience or religion with particular regard to conscientious objection had received no attention. Some Jehovah's Witnesses had reportedly been imprisoned in Brazil for refusing military service; in Paraguay there were no reports of recruits having claimed a right of conscientious objection. With the end of military rule, however, churches and non-governmental organisations, led by SERPAJ (Servicio, Paz y Justicia), quickly initiated successful campaigns in both countries to have references to conscientious objection included in the new Constitutions. The year after the promulgation of the 1992 Paraguay Constitution, the first group of five recruits declared themselves to be conscientious objectors; at the time of their hearing on 30th September 1993, a survey showed that 93% of the population remained unaware that this legal right existed. Within the next ten years over 100,000 conscientious objectors had registered and the rate of declarations was running at over 15,000 per annum, or something like a quarter of the number becoming eligible for military service - and this despite the fact that eleven of the sixteen local government authorities (departments) still had no provisions for the registration of conscientious objectors.[2]

Israel is perhaps the only instance where assessment of claims to conscientious objector status happens without any legal recognition of conscientious objection. Article 36 of the National Defence Service Law gives the armed forces sweeping authority to grant exemptions from military service for reasons connected with the requirements of education, security settlement or the national economy, for family reasons or for other reasons. Acting under this provision, in 1995 the armed forces established the Committee for Granting Exemptions from Defence Service for Reasons of Conscience, usually referred to simply as the Conscience Committee. The rules and procedures of this committee are not published, and there is no appeal from its decisions. Those whom it does exempt from military service are classified not as conscientious objectors but as unsuitable. The decision to refer an individual to the committee is entirely in the hands of the Israeli Defence Force; the most common category, selective objectors to service in the Occupied Territories,[3] rarely come before it, nor do most applications by Druze conscripts for exemption on grounds of conscience. Over the years, the Committee has turned down the overwhelming majority of the cases it has considered.[4]

In States where there is no process for the recognition of conscientious objection, only those conscientious objectors will come to light who feel led to challenge the system by refusing military service. Others will either avoid it or will feel that there is no option but to comply with a law which violates their consciences. The same can be true of those who have no knowledge of such provisions as do exist, or have severe and justifiable doubts about their fairness or adequacy in practice. This is an important consideration in circumstances where conscientious objectors flee their home country rather than face military recruitment - or desert or go absent without leave having been unwillingly recruited.

It should also be noted that in some States which do have legal provision for the recognition of conscientious objectors, not all objectors have the opportunity to declare themselves. Austria and Taiwan for example, will not accept an application for the recognition of conscientious objector status until a medical examination has taken place and the person concerned has been passed fit for military service. A conscientious objector who is exempted from military service on medical grounds is thus never formally recognised as such. This was also the situation in the USA and the Netherlands before conscription was suspended, in 1973 and 1997 respectively. By contrast, in the Russian Federation the application is first considered in principle, leading to a Decision on Substitution. Only after that does a medical examination take place before the draft commission notifies the alternative service agency of an Assignment Decision.[5]

Switzerland in fact explicitly excludes the recognition as conscientious objectors of persons who would be exempt from military service on other grounds. In practice, this can also be the effect of the system in the USA, where all exemptions and deferments are handled, technically, by reclassification. The classifications are placed in a strict hierarchy, and those who qualify on, for example, medical grounds are placed in the appropriate classification without consideration of whether they might qualify for exemption on grounds lower down the list. 

This is important because the issue is not just how easy it is to avoid military service. Strongly and sincerely committed conscientious objectors may legitimately demand to be recognised as such. Some feel that an important part of manifesting the belief which has led them to their objection is that they must publicly testify to it.

Hence for example the case brought against Chile to the Inter-American Commission on Human Rights[6] on behalf of three young men who in 1998 when faced with the requirement to register for military service had submitted to the recruitment authorities individual requests stating their conscientious objection to participation in such service, but who had nevertheless been called up. A large part of the argument of the State rested on the fact that when they failed to report for induction they had suffered no punishment as a result and that indeed in the last twenty years no one had in fact been detained for failure to perform military service. (paragraph 26). The State had already, in Paragraph 22, cited the proposed reform of Chilean military service legislation, which would render such service essentially voluntary. 

In August 2005 the law referred to was indeed passed; however it does not suspend the operation of the system of obligatory military service, but simply formalises what on the State's own admission was already rapidly becoming the de facto situation. Instead of registering all young men for the ballot to perform military service and then not pursuing those who failed to answer the summons to enlist, under the new system the State will in the first instance enrol those who are prepared to put themselves forward voluntarily to fulfil the obligatory requirement, resorting to a ballot only if the number of recruits thus obtained proves insufficient. Moreover, the system of requiring those liable for military service to register is to be replaced by one which relies on data provided by the Civil Registry. In other words the liability to perform military service if called upon remains unchanged, there is simply an intention on the part of the State that the occasion to put the question will in future be less frequent. Meanwhile, the number of those choosing to declare themselves to the recruitment authorities as conscientious objectors is growing; on 27th September 2005, in Santiago and two provincial cities about 40 conscientious objectors publicly handed in declarations at military recruitment offices.[7]

Similarly, among the many ramifications of the recent - and not definitively resolved -case of Mehmet Tarhan, a conscientious objector in Turkey[8] was his resistance of moves by the military authorities to seek proof of his sexual orientation with a view to classifying him as dysfunctional - unfit for service instead of acknowledging his conscientious objection.

  • [1] General Counsel of Jehovah's Witnesses, evidence submitted to the OHCHR, February 2005
  • [2] 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.
  • [3] For a full documentation of this movement, see Peretz, K. (Editor), Refusnik, Zed Books, London, 2004 (2nd Edition)
  • [4] War Resisters International, Conscientious objection in Israel: an unrecognised human right, February 2003.
  • [5] General Counsel of Jehovah's Witnesses, evidence submitted to the OHCHR, February 2005
  • [6] Case Number 12,219; decision given in Report 73/05 on 10th March 2005
  • [7] CO Update Number 14, War Resisters International, (www.wri-irg.org), October 2005
  • [8] see CO Updates Numbers 9, 10/11, 14, 15 and 16, War Resisters International (www.wri-irg.org), May - December 2005 and the public statement by Amnesty International (ref: EUR 44/036/2005) issued on 9th December 2005.