Human Rights of Armed Forces Personnel: Human Rights of HUMAN RIGHTS OF ARMED COMPENDIUM OF STANDARDS, Armed Forces Personnel: GOOD PRACTICES AND RECOMMENDATIONS FORCES PERSONNEL FORCES COMPENDIUM OF STANDARDS, GOOD PRACTICES AND RECOMMENDATIONS This compendium is a flagship publication of the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) and DCAF - Geneva Centre for Security Sector Governance, which explores existing laws, AND RECOMMENDATIONS GOOD PRACTICES OF STANDARDS, COMPENDIUM policies and mechanisms for ensuring the protection of the human rights of armed forces personnel in line with international standards and OSCE commitments. Good practices and recommendations for protecting and respecting the human rights of armed forces personnel are presented at the end of each chapter. The compendium highlights the importance of human rights in the armed forces to maintain the military’s accountability and embody the democratic commitments of every state. In doing so, it underscores the primary role of commanders in cultivating a climate in which the human rights of all service personnel are respected. Compendium of Standards, Good Practices and Recommendations Published by OSCE Office for Democratic Institutions and Human Rights (ODIHR) Ul. Miodowa 10 00–251 Warsaw Poland www.osce.org/odihr and DCAF - Geneva Centre for Security Sector Governance Chemin Eugène-Rigot 2E 1202 Geneva Switzerland www.dcaf.ch © OSCE/ODIHR, DCAF 2021 All rights reserved. The contents of this publication may be freely used and copied for educational and other non-commercial purposes, provided that any such reproduction is accompanied by an acknowledgement of the OSCE Office for Democratic Institutions and Human Rights and DCAF - Geneva Centre for Security Sector Governance as the source. ISBN 978-83-66690-12-7 Designed by Rodrigo Amorim – www.amorimage.ch 3 Human Rights of Armed Forces Personnel 4 Compendium of Standards, Good Practices and Recommendations Human Rights of Armed Forces Personnel: Compendium of Standards, Good Practices and Recommendations 5 Human Rights of Armed Forces Personnel 6 Compendium of Standards, Good Practices and Recommendations Acknowledgements This Compendium was drafted and peer-reviewed by the following experts: • Susan Atkins (Chapter 11: Women in the Armed Forces); • Mark Drumbl (Chapter 13: Children Associated with the Armed Forces); • Alison Duxbury (Chapter 18: Disciple and Military Justice) • Beth Hillman (Chapter 12: LGBTI Members in the Armed Forces); • Emmanuel Jacob (Chapter 15: Working Conditions and Support for Veterans); • Ian Leigh (Chapter 4: National Protections for the Human Rights of Armed Forces Personnel, Chapter 5: Civil and Political Rights, Chapter 6: Freedom of Expression, Chapter 7: Military Unions and Associations, Chapter 8: Conscientious Objection to Military Service, Chapter 9, Religion in the Armed Forces and Chapter 14: Preventing Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and Other Forms of Abuse of Armed Forces Personnel); • Rain Liivoja (Chapter 3: International Human Rights Law, Chapter 17: The Role of Commanders and Individual Accountability); • William McDermott (Chapter 1: Introduction, Chapter 19: Ombuds Institutions for the Armed Forces); • Marissa Reilly (Chapter 12: LGBTI Members in the Armed Forces) • Jonna Naumanen and Ewa Sapiezynska (Chapter 2: OSCE Commitments); and • Reetta Toivanen (Chapter 10: Ethnic, Racial and Linguistic Minorities in the Armed Forces, Chapter 16: Human Rights Education). ODIHR and DCAF would like to express their gratitude to Mark Knight, Alice Thomas and the many ODIHR and DCAF staff responsible for this publication for their contributions, useful comments on and reviews of this Compendium. Also to International Society for Military Law and the Law of War, the Subcommittee on Security and Defence of the European Parliament, and the Asia Pacific Centre for Military Law at the University of Melbourne for giving a platform to present early findings of the Compendium. The two organizations appreciate all those who enriched the quality of this Compendium by commenting on and provided input to drafts, with special thanks to the interlocutors from the 25 participating States that completed the questionnaire providing useful examples. Finally, ODIHR and DCAF are grateful to the governments of Canada and Norway for their generous financial support in the development of this Compendium. 7 Human Rights of Armed Forces Personnel Contents Acknowledgements 7 Abbreviations and Acronyms 14 Foreword 16 Chapter 1: Introduction 18 The Importance of Human Rights of Armed Forces Personnel 19 How to Use This Compendium 22 Objectives 23 Scope 23 Human rights 23 Armed forces 23 Armed forces personnel 24 Methodology 25 Revision of the 2008 handbook 25 ODIHR-DCAF questionnaire 25 Authorship 26 Expert review 26 Chapter 2: OSCE Commitments 28 The Nature and Status of OSCE Commitments on Human Rights 28 OSCE Monitoring and Implementation Mechanisms 29 Relevant OSCE Commitments 30 OSCE Code of Conduct on Politico-Military Aspects of Security: Key Features 34 Further reading 36 Chapter 3: International Human Rights Law 37 Introduction: Issues at Stake 37 International Human Rights Standards 40 Reservations, derogations and limitations 45 Domestic implementation 48 International compliance mechanisms 49 International Covenant on Civil and Political Rights 51 International Covenant on Economic, Social and Cultural Rights 52 International Labour Conventions 52 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) 53 Fundamental rights under European Union law 54 Good Practices and Recommendations 55 Further reading 56 Chapter 4: National Protections for the Human Rights of Armed Forces Personnel 57 Introduction: Issues at Stake 57 Constitutional provisions 57 The scope of defence legislation 62 8 Compendium of Standards, Good Practices and Recommendations International Human Rights Standards 63 Different Approaches 66 Constitutional provisions 66 Parliaments and the human rights of armed forces personnel 69 Legislation and the human rights of armed forces personnel 70 Good Practices and Recommendations 73 Further reading 73 Chapter 5: Civil and Political Rights 76 Introduction: Issues at Stake 76 International Human Rights Standards 78 Freedom of association and political neutrality 78 The right to vote and stand for office 82 The right to demonstrate 84 Different Approaches 84 Good Practices and Recommendations 89 Further reading 89 Chapter 6: Freedom of Expression 90 Introduction: Issues at Stake 90 Social media 92 International Human Rights Standards 93 ICCPR 94 Limits to freedom of expression: the ECHR approach 95 Whistle-blower protection 97 Different Approaches 98 Contact with the media 99 Reporting to official bodies 99 Use of mobile phones 100 Use of social media 101 Whistleblowing 103 Good Practices and Recommendations 104 Further reading 105 Chapter 7: Military Unions and Associations 106 Introduction: Issues at Stake 106 International Human Rights Standards 110 Different Approaches 117 Good Practices and Recommendations 125 Further reading 125 Chapter 8: Conscientious Objection to Military Service 126 Introduction: Issues at Stake 126 International Human Rights Standards 128 9 Human Rights of Armed Forces Personnel Conscientious objection under the ICCPR 129 Council of Europe standards 130 European Union 133 Different Approaches 133 Constitutional and legal recognition 133 Reasons for conscientious objection 135 Alternative service (substitute service) 137 Conscientious objection for members of regular armed forces 139 Good Practices and Recommendations 142 Further reading 142 Chapter 9: Religion in the Armed Forces 143 Introduction: Issues at Stake 143 International Human Rights Standards 147 Limitations on freedom of religion or belief 150 Discrimination on the basis of religion or belief 151 Different Approaches 152 Good Practices and Recommendations 157 Further reading 158 Chapter 10: Ethnic, Racial and Linguistic Minorities in the Armed Forces 160 Introduction: Issues at Stake 160 International Human Rights Standards 164 Different Approaches 167 Dealing with complaints of racial discrimination or harassment 167 Implementing equal opportunity in the armed forces 169 Special personnel policies 171 Training measures 172 Approaches to linguistic minorities 172 Non-nationals in armed forces 174 Good Practices and Recommendations 175 Further reading 176 Chapter 11: Women in the Armed Forces 177 Introduction: Issues at Stake 177 International Human Rights Standards 178 Convention on the Status of Women and United Nations Security Council resolutions on Women, Peace and Security 179 International labour standards 179 Council of Europe 181 Different Approaches 183 Recruitment 184 Conscription 185 Equal representation and opportunities 186 Promotion 188 Respect for the right to family life 189 Gender-based violence, and preventing and challenging abuse 190 10 Compendium of Standards, Good Practices and Recommendations Retention and attrition 193 Structures to support women service personnel and promote change 194 Further reading 198 Chapter 12: LGBTI Members of the Armed Forces 199 Introduction: Issues at Stake 199 The central issue 201 Cultural attitudes towards LGBTI persons 202 Harassment and discrimination 203 International Human Rights Standards 204 Prohibition of discrimination 204 Right to privacy 207 Different Approaches 209 Inclusion 210 Admission 210 Tolerance 210 Exclusion 211 Persecution