4.6 What happens when the claim is (finally) rejected?

The Commission on Human Rights... emphasizes that States should take the necessary measures to refrain from subjecting conscientious objectors to imprisonment or to repeated punishment for failure to perform military service and recalls that no one shall be liable or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

(Resolution 1998/77, OP5)

Unless they are prepared to grant total and unconditional exemptions, all States ultimately face the problem of what action to take in the case of objectors who refuse the service asked of them. Those which do not recognise a right of conscientious objection of course reach this point as soon as conscientious grounds are cited. Those which do recognise such a right reach the point in an individual case either when any appeals procedure has been exhausted and the application has been turned down, or when confronted with an objector who is not prepared to accept the alternative service offered. 

Once the appeals process has been exhausted, a rejected applicant faces a dilemma. If he accepts the verdict of the legal process, this might be interpreted as calling into question the sincerity of the objection in the first place. Otherwise he has no choice but to persist in his refusal. Meanwhile, the situation of refusal to perform alternative service may occur in the case of an absolute objector, one who on grounds of conscience refuses any dealings with the State, or who argues that even a civilian service option represents an indirect support of the militarised system,^[1] or in a situation where the objector is offered alternative service which he feels does not address his objection because, for instance, it is directly or indirectly too closely linked to the military and to war preparations, or again where the objector feels that the conditions of the alternative service are so unfavourable by comparison with military service as to represent an illegitimate punishment for the exercise of his conscience.^[2]

In all these situations, the issue for the objector is, or remains, one of freedom of thought, conscience or religion, but from the viewpoint of the State either the right of conscientious objection is not recognised in principle, or the claim has been found invalid in the case of the individual concerned. Therefore the perceived offence is never conscientious objection as such but the refusal of obligatory service, whether military or civilian. The specific charge may be failure to report, refusing or evading enlistment or desertion. Or the objector may be charged with various military disciplinary offences such as refusing to obey an order or to wear uniform, insubordination, or being absent without leave (see box).

As Table 14 shows, many States, including some whose legislation concerning recognition is relatively liberal, do in fact imprison those individuals whose conscientious objection they do not recognise. In the majority of them, a single sentence of imprisonment is also considered as discharging the obligatory service requirement, but in others the punishment does not affect liability for military service, and therefore the objector is or may be subject to repeated call-ups, and subsequent punishment.

... the Working Group recommends that all States that have not yet done so adopt appropriate legislative or other procedure to ensure that conscientious objector status is recognized and attributed, in accordance with an established procedure, and that, pending the adoption of such measures, when de facto objectors are prosecuted, such prosecutions should not give rise to more than one conviction, so as to prevent the judicial system from being used to force conscientious objectors to change their convictions.

Opinion of the Working Group on Arbitrary Detention, Number 36/1999, Paragraph 94, reported in UN Document Number E/CN.4/2001/14.

With regard to the specific case of Osman Murat Ülke in Turkey, this practice has been criticised by both the UN Working Group on Arbitrary Detention (see box) and the European Court of Human Rights:

The Court noted... that there was no specific provision in Turkish law governing penalties for those who refused to wear uniform on conscientious or religious grounds. It seemed that the relevant applicable rules were provisions of the military penal code... That legal framework was evidently not sufficient to provide an appropriate means of dealing with situations arising from the refusal to perform military service on account of one's beliefs. Because of the unsuitable nature of the general legislation applied to his situation the applicant had run, and still ran, the risk of an interminable series of prosecutions and criminal convictions.

The numerous criminal prosecutions against the applicant, the cumulative effects of the criminal convictions which resulted from them and the constant alternation between prosecutions and terms of imprisonment, together with the possibility that he would be liable to prosecution for the rest of his life, had been disproportionate to the aim of ensuring that he did his military service. They were more calculated to repressing the applicant's intellectual personality, inspiring in him feelings of fear, anguish and vulnerability capable of humiliating and debasing him and breaking his resistance and will.

... In the aggregate, the acts concerned constituted degrading treatment within the meaning of Article 3.^[3]

A further case from Turkey was filed with the European Court of Human Rights on December 23, 2004 by Yunus Erçep, a Jehovah's Witness from Istanbul. He had been prosecuted 17 times in six years for bakaya (evasion of enlistment), although on each occasion he had in fact presented himself and explained his conscientious objection. At the time of filing the application he was out on bail facing court-imposed penalties of 10 months in prison and 1.6 billion Turkish Lira ( i.e. about $1000) in fines.^[4]

Referring back to their decision in the Ülke case, the UN Working Group on Arbitrary Detention^[5] stated with regard to four linked cases in Israel:

The explanation of the Government that after one conviction for not having obeyed an order to observe in the military repeated acts of disobedience are considered new offences did not convince the Working Group. Very much along the lines of its reasoning in its opinion Number 36/1999,... the Working Group is of the opinion that if after an initial conviction the convicted persons exhibit, for reasons of conscience, a constant resolve not to obey the subsequent summonses, additional penalties imposed for disobedience have the same content and purpose: to compel an individual to serve in the army. Therefore, the second and subsequent penalties are not compatible with the principle of non bis in idem, as contained in article 14, paragraph 7, of ICCPR, which states that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted … Moreover, repeated penalties for refusing to serve in the military would be tantamount to compelling someone to change his/her mind for fear of being deprived of liberty if not for life, then at least until the age at which citizens cease to be liable for military service.

Some States have made legislative provision which while not removing the problem of repeated penalties has at least put a limitation on it. They include Turkmenistan and the Republic of Korea, which do not recognise conscientious objection in any circumstances, and Greece, which does.

Thus in Turkmenistan, persons who have been twice convicted for evading the call-up are thereafter exempted from military service.^[6]  Even so, since the second ‘crime’ is considered a repetition, the conscientious objector may be sentenced to a stricter prison or camp regime intended for more serious or dangerous criminals.^[7]

The Law on Conscientious Objection brought in in Greece in 1997 included a provision that Persons who are convicted on charges of refusal to perform military service and who have served a prison sentence equal to or of longer duration than the alternative service term required of them had they been acknowledged to be conscientious objectors, are to be exempted from call-ups for enlistment in the Armed Forces following their release from prison. (Law 1510/1997, Article 24.1). This provision does not however limit the sentence which may be imposed in the first instance, nor does it apply if the refusal to be inducted has not been acknowledged and the objector is therefore charged with a military offence, typically insubordination or disobedience. In such circumstances there would appear to be no limit to the number or length of sentences handed down, as evidenced by the case of Lazaros Petromedilis, who has served three terms of imprisonment since 1992 but in December 2004 was sentenced to a further 30 months, to be added to another, previously suspended, sentence of 20 months.

In the Republic of Korea, under Article 36, Paragraph 2 of the Enforcement Decree of the 2003 Military Service Act, those who have served sentences of at least 18 months are released from the obligation to perform active military service. Although almost all refusers of active military service have subsequently been sentenced to the minimum 18 months imprisonment which prevents them from being subjected to repeated call-up, the same is not true of refusers of reserve service. There is no legislative limit on the number of times they may be recalled and receive fresh penalties, or on the cumulative amount of such penalties. Reservists do not seem to feature on the lists of imprisoned conscientious objectors, implying that most are fined, but at least one case has been reported^[8] where a reservist had served a total of eighteen months' imprisonment in successive sentences, but as this had not been in one single period of imprisonment did not benefit from the limitation. 

In fact, however, it is incitement to conscientious objection which is treated as a more serious crime in the Republic of Korea than is conscientious objection itself; under Article 114 of the Criminal Code (Formation of Criminal Organization) Those who have formed or joined a criminal organization with the purpose of refusing the military service or a legal obligation to pay taxes shall be sentenced to imprisonment of up to 10 years or to the penalty fine of up to 1.5 million won.^[9]

Instances of repeated call-ups and penalties have been reported in the past from Armenia; and penalties, generally in the form of fines or forced labour, which increase on a second conviction have been reported from Uzbekistan. They were also recorded in the USA during the Vietnam War,^[10] and there is no evidence that the wording of the Military Selective Service Act has subsequently changed to preclude this.

The punishments actually meted out sometimes greatly exceed the legal stipulations. In Eritrea, for example, just as the term of service in the army has been indefinitely extended, so has the imprisonment of conscientious objectors. Three Jehovah's Witnesses who declared themselves conscientious objectors at the first call-up for military service in September 1994 have now been held incommunicado in Sawa military base for over eleven years.^[11]

Brazil seems to be the one State where, on paper at least, there exists a formal process for refusing the alternative service available, which is effectively unarmed military service. Those that, in whatever case, also refuse to render Alternative Service, should present a Declaration written by the individual, expressing such refusal.^[12] A model declaration is attached to the regulations. The Jehovah's Witnesses report that this must also be accompanied by a Declaration from the congregation that the petitioner attends, represented by the local legal association and with a recommendation of the elders,... signed by the President of the legal Association, declaring that the petitioner is an approved member of the determined congregation.^[13] The application is made to the Ministry of Defence, at which point it is the duty of the military agencies to verify the real situation of the petitioner... this can be done by means of an investigation. The Ministry of Defence then forwards the Declaration to the Ministry of Justice. Subsequently, the Article continues, the petitioner will receive the Certificate of Refusal to Render Alternative Service... having to, at that time, turn over his electoral titles, which will be remitted to the respective Regional Electoral Tribune along with a copy of the Official Diary that publishes the suspension of political rights for each one. Despite the reference to an investigation there does not seem to be any provision for the possibility that the Declaration would be rejected. In practice, however, as mentioned above (page 51), it would appear that this process may never have been carried through as described.

In some States the possibility of absolute objection has been addressed by completely exempting those groups who are known to have the strongest objections, especially Jehovah's Witnesses. Finland and Israel have both granted such exemptions. Elsewhere, for example in Norway and Germany, Jehovah's Witnesses refuse to register for alternative service, but most will perform it if sentenced by a court to enforced completion of the alternative service.

New legislation, particularly the initial recognition of conscientious objection, raises questions regarding the situation of conscientious objectors who had evaded or refused military service before their rights were recognised in law. Can their status be recognised retrospectively? Will penalties imposed under the previous legislation continue to be enforced? Will evaders still be pursued? In fact, will the requirement to perform military service remain applicable to those who had not previously done so? As already mentioned (see page 67), some of these questions are also relevant to reservists.

When the Alternative Service Law in Taiwan was enacted in January 2000, those conscientious objectors who had already served three years imprisonment were released. Those who had been imprisoned for less time could be released if they enlisted for alternative service.^[14]   By contrast, there has been no indication of a willingness in Greece to afford retrospective recognition to conscientious objectors who were first called up before 1997, partly because of the insistence on treating those who refuse induction as though they had already been inducted. This can be seen not only the ongoing Petromedilis case, but also the arrest and conviction in May 2005 of Georgios Koutsomanolakis, whose evasion of military service dated back to 1979.

The Commission on Human Rights...  encourages States, as part of post-conflict peace-building, to consider granting, and effectively implementing, amnesties and restitution of rights, in law and practice, for those who have refused to undertake military service on the grounds of conscientious objection. 

( Resolution 2004/35 )

A special manifestation of this issue has affected the large number of nationals of Serbia-Montenegro who were outside the country at the time that the 1991 Yugoslav war started, or who left to avoid the war. Under the Dayton and Kumanovo agreements which ended the Yugoslav wars, a general amnesty was announced for all those who faced charges as males of military age who had left the country without the permission of the (then) Yugoslav National Army. However the requirement to perform military service, dating from a time before there was any provision for conscientious objection, was not annulled; and indeed the upper age to which the obligation applied had been raised in 1999 from 27 to 35 years. Thus conscripts who were not inducted by the end of the calendar year when they reached the age of 27 are declared draft dodgers by recruitment bureaus and their obligation to serve is extended until the end of the calendar year in which they reach the age of 35. That, in itself, would not be so bad if it were not accompanied by criminal charges for failing to report for military duty and avoiding military service, under Article 214 of the Criminal Code. The competent prosecutor then requests from the investigative judge to investigate the case. And, since the conscript is not available, the judge issues a detention order, and puts him on a wanted list... military courts have instituted criminal proceedings against over 2,000 conscripts from the territory of Serbia now living abroad. In all these cases, the wanted posters and detention orders were issued... civilian judiciary have taken over from the military, but since the law has not been changed, civilian courts are obliged to follow the same procedure... Meanwhile, statements of certain high officials that there will be no arrests only add to the overall confusion, since no government official, be he a defense or prime minister, or even the president of the republic, does not have the authority to decide whether someone will be arrested or not.^[15]

The result is that men in this category are in practice unable to return to Serbia-Montenegro even for a short visit as they are liable to be arrested at the border and either be required now to perform such service or sentenced to imprisonment for evasion of military service. To complicate the situation, many now have dual nationality, but precisely because they have not fulfilled the military obligation the Serbian authorities will not permit them to resolve the situation by renouncing Serbian nationality. 

A suggestion by the Minister of Defence at the end of 2004 that application for exoneration might be made to Serbian Embassies overseas did not produce the expected solution of the problem; very few such exonerations have been granted, meanwhile a fee of EURO 50 is reportedly charged both at the time of application and in order to receive notification of the result. The latest proposals,^[16] brought forward in a draft law by the Ministry of Defence in August 2005 are based closely on the longstanding Turkish provision whereby citizens living abroad could commute their military service to one month of training on payment of a sum which was originally set at DM 10,000. In Serbia sums ranging between EURO 1,000 and EURO 5,000 have been mentioned in different reports; the upper end of the range would be closer to the Turkish precedent. Another, unquoted, inspiration for this may have been the amnesty for draft evaders announced in Armenia in March 2004, permitting those who had left the country before 1995 to escape the threat of criminal prosecution by payment of US$ 3,500. Given that there had at the time in question been no provision in either State for conscientious objection, both the proposed Serbian and the actual Armenian provisions represent a financial penalty for conscientious objection; by continuing to insist on a month of military training the Serbian proposals are completely inappropriate. 

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• ^[1] See for example the German case reported by War Resisters International in CO Alert Number GER14755, 12^th September 2005.
• ^[2] See the Finnish cases in War Resisters International CO Alerts Numbers 14783 and 14785, 21^st March, 2006.
• ^[3] CHAMBER JUDGMENT ÜLKE v. TURKEY (application no. 39437/98) Press release issued by the Registrar, European Court of Human Rights, 24.1.06
• ^[4] General Counsel of Jehovah's Witnesses, evidence submitted to the OHCHR, February 2005
• ^[5] In paragraph 30 of its Opinion Number 24/2003 (Israel), reported in UN Document E/CN.4/2005/6/Add.1.
• ^[6] Law on Military Service, Article 16, Clause 3.
• ^[7] General Counsel of the Jehovah's Witnesses, Evidence submitted to the OHCHR, February 2005.
• ^[8] General Counsel of the Jehovah's Witnesses, Reply to OHCHR questionnaire, August 2003.
• ^[9] Between $1,000 and $1,500.
• ^[10] Prasad, D. and Smythe, T. (1968), Conscription -a world survey: compulsory military service and resistance to it, War Resisters International, London, page 146.
• ^[11] Amnesty International (2004), Eritrea: You have no right to ask, Section 3.
• ^[12] Article 8 of the Alternative Service Regulations
• ^[13] General Counsel of Jehovah's Witnesses, response to OHCHR questionnaire 2003
• ^[14] General Counsel of Jehovah's Witnesses, response to OHCHR questionnaire 2003
• ^[15] Buturovic, J, How to solve the problem of conscripts who avoided military service, Centre for Civil-Military Relations, Belgrade, www.ccmr-bg.org/analize/rec/word54.htm, 2005.
• ^[16] Seke, I., Serbia and Montenegro: Ministry of Defence presents draft law on military service / backlash for right to CO?, in CO Update Number 13, War Resisters International, London, September 2005.