IENTIOUS IENTIOUS TION C C BJE TO MILITARY SERVICE TO MILITARY CONS O CONSCIENTIOUS OBJECTION TO MILITARY Service UNITED NATIONS Designed and printed by the Publishing Service, United Nations, Geneva GE.12-18465 — February 2013 — 3,480 — HR/PUB/12/1 United Nations publication Sales No. E.12.XIV.3. USD 14 ISBN 978-92-1-154196-0 CONSCIENTIOUS OBJECTION TO MILITARY SERVICE New York and Geneva, 2012 II CONSCIENTIOUS OBJECTION TO MILITARY SERVICE NOTE The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Symbols of United Nations documents are composed of capital letters combined with figures. Mention of such a figure indicates a reference to a United Nations document. HR/PUB/12/1 UNITED NATIONS PUBLICATION SALES No. E.12.XIV.3 ISBN: 978-92-1-154196-0 e-ISBN: 978-92-1-055405-3 © 2012 UNITED Nations ALL WORLDWIDE RIGHTS reserved CONTENTS III INTRODUCTION ............................................................................ 1 I. CONSCIENTIOUS OBJECTION: INTERNATIONAL HUMAN RIGHTS STANDARDS AND JURISPRUDENCE ........................................... 6 A. The international legal framework ......................................... 7 B. Human Rights Committee ..................................................... 9 C. Regional human rights courts and commissions ....................... 14 D. Commission on Human Rights .............................................. 17 E. Selective conscientious objection........................................... 20 F. Limitations on freedom of thought, conscience and religion in the context of conscientious objection ................................ 21 G. Definitions, applicability and related discrimination ................ 21 H. Exemption from military service on other grounds and the obligation to recognize conscientious objection .......... 24 I. Conscientious objection for persons serving in the armed forces 25 J. Legal basis and process applicable to conscription ................. 26 K. Minimum age for recruitment, including conscription ............... 28 L. Conscription: international humanitarian law and the United Nations Guiding Principles on Internal Displacement ........ 30 M. National implementation procedures: access to information and decision-making process ................. 31 N. Imprisonment and the death penalty for conscientious objectors 33 O. Prohibition of repeated punishment ....................................... 34 P. Post-conflict amnesties .......................................................... 37 Q. Alternative service ............................................................... 37 II. CONSCIENTIOUS OBJECTION AND ALTERNATIVE SERVICE: NATIONAL LAW AND PRACTICE ................................................ 44 A. Exemptions from conscription unrelated to conscientious objection .................................................... 45 IV CONSCIENTIOUS OBJECTION TO MILITARY SERVICE B. Registration for conscription where compulsory service has been abolished or suspended ......................................... 47 C. Legal basis in national law ................................................... 48 D. Definitions in national law .................................................... 49 E. Application for conscientious objector status: time limits, treatment pending a decision, formal requirements and conditions resulting in disqualification.................................... 51 F. Conscientious objection for those serving voluntarily ............... 55 G. Conscientious objection for those serving in the reserves ........... 57 H. Selective conscientious objection........................................... 58 I. Information about applying for conscientious objector status..... 59 J. Decision-making process ...................................................... 62 K. Alternative service: non-combatant and civilian service ............ 65 L. Documentation issued at the conclusion of military or alternative service ........................................................... 68 M. Arrangements during periods of transition .............................. 69 III. PROTECTION OF CONSCIENTIOUS OBJECTORS IN INTERNATIONAL REFUGEE LAW ............................................ 72 A. United Nations action relating to international protection ......... 73 B. Determining the international protection needs of conscientious objectors, draft evaders and deserters ................................... 74 C. Persecution ......................................................................... 75 D. Underage recruitment and participation in hostilities ............... 78 E. Links to the grounds set out in the 1951 Convention ............... 79 F. State practice ..................................................................... 81 G. Post-conflict situations .......................................................... 81 FINAL OBSErvaTIONS: THE CHALLENGE TO STATES ........................ 83 1 INTRODUCTION This publication brings together applicable international standards and jurisprudence relating to conscientious objection to military service.* It does not purport to set or establish standards. The publication also addresses the implementation of alternative service to military service for those States that have established programmes of this kind. As questions have often arisen as to how in practice States implement conscientious objection to military service and programmes relating to alternative service, this publication will give examples and highlight those practices that are exemplary. As conscientious objection to military service can, in certain circumstances, be recognized as a basis for refugee status under international refugee law, a chapter of this publication indicates the applicable standards. This publication is intended as a guide for State officials who are responsible for implementing laws, administrative decrees or regulations relating to conscientious objection to military service, as well as Members of Parliament and Government officials who may be involved in drafting laws or administrative decrees or regulations on this subject. Additionally, this publication is intended to guide individuals who may be called to perform military service and are unsure of what their rights are in this regard, and how and when they can be exercised. The publication is also intended to help civil society, including non-governmental organizations which have been established to help defend the rights of conscientious objectors, as well as other elements of civil society such as the media that may wish to have a better understanding of both international standards and jurisprudence in this regard, as well as examples of national practice. Although the legal focus of this publication is primarily on universal standards and jurisprudence, reference is also made to regional instruments and related action concerning conscientious objection to military service and alternative service.1 * The Office of the United Nations High Commissioner for Human Rights (OHCHR) would like to acknowledge the contribution of the late Kevin Boyle, who reviewed this publication. 2 CONSCIENTIOUS OBJECTION TO MILITARY SERVICE At least since the middle of the nineteenth century1 the words “conscientious objection” have been applied intermittently to an unwillingness based on conscience to perform military service. “Conscience” is defined in the Concise Oxford English Dictionary (twelfth ed.) as “a person’s moral sense of right and wrong”. Since the beginning of the twentieth century, in the English language, the phrase “conscientious objection” has been used almost exclusively in the context of refusal to perform military service, to the extent that “to military service” is implied, unless specific reference is made to some other form of objection. Many conscientious objectors have been, and continue to be, prepared to suffer for their convictions, undergoing repeated imprisonment and even death rather than forgo their principles. This demonstrates both the depth of conviction and its principled rather than expedient nature. The earliest recorded conscientious objector? In the year 295, on reaching the age of 21, Maximilianus, as the son of a Roman army veteran, was called up to the legions. However, he reportedly told the Proconsul in Numidia that because of his religious convictions he could not serve as a soldier. He persisted in his refusal and was executed. He was subsequently canonized as Saint Maximilian. Source: Peter Brock, Pacifism in Europe to 1914 (Princeton University Press, 1972), p. 13. The question of conscientious objection to military service has arisen mainly in States where there is an obligation to perform military duties, rather than in those States or societies where military service is voluntary. Throughout history such requirements have been imposed in various forms from time to time and there are many instances where it was recognized that it was inappropriate to lay these demands on minority pacifist religious groups. As early as 1575, during the Dutch wars of independence, Mennonites 1 An early example can be found in the New York Assembly Committee on the Militia and Public Defense Report No. 170, 4 March 1841. INTRODUCTION 3 had been exempted from the obligation to take part in the armed