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Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel

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Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel Handbook on Human Rights and Fundamental Freedoms Handbookof Armed on ForcesHuman Personnel Rights and Fundamental Freedoms of Armed Forces Personnel ODIHR Published by the OSCE Office for Democratic Institutions and Human Rights (ODIHR) Al. Ujazdowskie 19 00-557 Warsaw Poland www.osce.org/odihr © OSCE/ODIHR 2008 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/ODIHR as the source. ISBN 978-83-60190-53-1 Designed by Nona Reuter Printed in Poland by Agencja Karo Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel Acknowledgements This manual was written by Prof. Ian Leigh of the Durham University Human Rights Cen- tre (United Kingdom) and Dr. Hans Born of the Geneva Centre for the Democratic Control of the Armed Forces (Switzerland), with the assistance of Ms. Cecilia Lazzarini (DCAF) and Mr. Ian Clements (Durham University). ODIHR and DCAF express their gratitude to the governments of Germany and Romania for hosting the roundtable events “Citizen in Uniform: Implementing Human Rights in the Armed Forces” and “Military Unions and Associations”, respectively. They also thank the members of the expert review panel assembled to evaluate an earlier version of this hand- book: Col. Britt Brestrup, Deputy Commander at the Norwegian National Defence Col- lege; Dr. Nataliya Danilova, Research Fellow, Governance Research Centre, Department of Politics, University of Bristol; Ms. Allison Gill, Director, Moscow Office, Human Rights Watch; Mr. Emmanuel Jacob, President, European Organisation of Military Associations (EUROMIL); Prof. Michael Noone, Professor of Law, Catholic University of America, Washington, DC, former prosecutor-general of the US Air Force; Ms. Paulyn Marrinan Quinn, SC, Ombudsman for the Irish Defence Forces; Captain Katja Roeder, Equal Rights Advisor of the German Federal Armed Forces Association; Prof. Peter Rowe, Professor of Law, Lancaster University Law School, UK; Prof. Dr. Ruth Seifert, Professor of Sociol- ogy at the University of Applied Sciences Regensburg, Germany; Mr. Irakli Sesiashvili, Director of the association Justice and Liberty, former Deputy Ombudsman on Military Issues, Georgia. Furthermore, thanks are expressed to Mr. Willem F. van Eekelen, former Minister of Defence of the Netherlands; Mr. Jos Weerts, Head of the Research Department of the Netherlands Institute for Veterans; as well as Mr. David Nowsworthy, Megan Bastick and Major General (ret.) Guy de Haynin de Brie (all at DCAF) for their useful comments on earlier drafts of the handbook. ODIHR and DCAF are grateful to the governments of Austria, Germany, Finland, and the Netherlands for their financial contribution to the development of this handbook. 5 Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel Contents Abbreviations and Acronyms 9 Preface 11 Section I 13 Chapter 1 How to Use This Handbook 14 Chapter 2 Human Rights in the Armed Forces: Scope and Issues at Stake 17 Chapter 3 The Importance of Human Rights of Armed Forces Personnel 22 Section II 25 Chapter 4 OSCE Commitments 26 Chapter 5 International Human Rights Law 31 Chapter 6 General Constitutional Framework 42 Chapter 7 Domestic Legislation 47 Section III 55 Chapter 8 Civil and Political Rights 56 Chapter 9 Military Unions and Associations 65 Chapter 10 Conscientious Objection to Military Conscription and Service 74 Chapter 11 Religion in the Armed Forces 87 Section IV 99 Chapter 12 Ethnic and Linguistic Minorities in the Armed Forces 100 Chapter 13 Women in the Armed Forces 113 Chapter 14 Gays and Lesbians in the Armed Forces 129 Section V 143 Chapter 15 Children Associated with Armed Forces 144 Chapter 16 Preventing Mistreatment of Armed Forces Personnel 161 Chapter 17 Working Conditions 173 Chapter 18 Veterans 188 Section VI 203 Chapter 19 Human Rights Education 204 Chapter 20 The Responsibility of Commanders and Individual Accountability 209 Chapter 21 Discipline and Military Justice 219 Chapter 22 Ombudsmen 230 Annex 1. Selected OSCE Commitments 245 Bibliography 249 Selected Internet Resources 251 7 Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel Abbreviations and Acronyms BVerfGE - Bundesverfassungsgericht (German Federal Constitutional Court) CAP - Civil Air Patrol (United States) CRC - Convention on the Rights of the Child CEDAW - Convention on the Elimination of All Forms of Discrimination against Women CF - Canadian Forces CSFM - Conseil Supérieur de la Fonction Militaire (Higher Military Council, France) DACOWITS - Defense Department Advisory Committee on Women in the Services (USA) DCAF - Geneva Centre for the Democratic Control of Armed Forces DoD - Department of Defense (United States) EC - European Community ECHR - European Convention for the Protection of Human Rights and Fundamental Freedoms EEC - European Economic Community ESC - European Social Charter EU - European Union EUROMIL - European Organisation of Military Associations FBI - Federal Bureau of Investigation (United States) HC - House of Commons Papers (United Kingdom) HPAT - Homosexual Policy Assessment Team of the UK Armed Forces ICCPR - International Covenant on Civil and Political Rights ICERD - International Convention on the Elimination of All Forms of Racial Discrimination ICESCR - International Covenant on Social, Economic and Cultural Rights IGK - Inspecteur-Generaal der Krijgsmacht (Inspector-General for the Armed Forces, the Netherlands) ILO - International Labour Organization IOM - International Organization for Migration KMFRC - Kingston Military Family Resource Centre (Canada) LUVA - Luchtmacht Vrouwenafdeling (women’s volunteer force of the Dutch Air Force) MARVA - Marine Vrouwenafdeling (women’s volunteer force of the Dutch Royal Marine Corps) MILVA - Militaire Vrouwenafdeling (women’s volunteer force of the Dutch Army) NATO - North Atlantic Treaty Organization NCO - Non-commissioned officer NGO - Non-governmental organization ODIHR – OSCE’s Office for Democratic Institutions and Human Rights OSCE - Organization for Security and Co-operation in Europe PRISMA - Project for Resettlement and Retraining (Serbia) PTSD - Post-traumatic stress disorder QC - Queen’s counsel SAMO - Swedish Association of Military Officers SPARS - United States Coast Guard Women’s Reserve UDHR - Universal Declaration of Human Rights UN - United Nations UNDP - United Nations Development Programme UNICEF - United Nations Children’s Fund VA - United States Department of Veterans’ Affairs WAC - Women’s Army Corps (United States) WAVES - Women Accepted for Volunteer Emergency Service (United States) 9 Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel Preface Armed forces are an integral part of a democratic state and society. By fulfilling their defence and national-security functions, the armed forces play a key role in enabling a security environment that allows us to enjoy the inalienable rights and freedoms to which we are all entitled as human beings. As representatives of the state structure, armed forces personnel are bound to respect human rights and international humanitarian law in the exercise of their duties. But only when their rights are guaranteed within their own institu- tion will armed forces personnel be likely to uphold these in the discharge of their tasks — both when in the barracks and during operations. Many states have had to adapt their military structures in order to respond to a rapidly changing security environment. An increasing number of OSCE participating States have transformed their military from conscription-based to a fully volunteer professional force. The role and tasks of the military are also changing, with many participating States in- volved in international peace-keeping and humanitarian missions. In addition, there is an increasing realization of the necessity for participating States to ensure democratic control over their military forces and to review their military structures with the aim of making them consistent with international human rights obligations. These changes reflect a recognition that, as “citizens in uniform”, armed forces personnel — whether they are career servicemen or -women or conscripts — are entitled to the same human rights and fundamental freedoms as all other citizens. Indeed, the cornerstone of all international human rights treaties to which OSCE participating States are bound is that all human beings, regardless of their professional situation or position in society, are entitled to their inalienable rights and freedoms. The ODIHR-DCAF project to develop this Handbook on Human Rights and Fundamen- tal Freedoms of Armed Forces Personnel was inspired by the OSCE Code of Conduct on Politico-Military Aspects of Security. This document, adopted by the participating States in 1994, requires states to “reflect in their laws or other documents the rights and duties of armed forces personnel” and to “ensure that the military, paramilitary and security forces personnel will be able to enjoy and exercise their human rights and fundamental free- doms”. It also requires participating States to “provide appropriate legal and administrative procedures to protect the rights of all its forces personnel”. As the world’s largest regional security organization, the OSCE is uniquely positioned to address the issue of human rights of members of the armed forces. In our comprehensive approach
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