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REPORT Nº 43/05 CASE 12.219 MERITS CRISTIÁN DANIEL SAHLI VERA ET AL. CHILE[1]March 10, 2005
I. SUMMARY
1. On October 6, 1999, the Inter-American Commission on Human Rights (hereinafter “the Commission”) received a petition presented by the Center for Justice and International Law (CEJIL), the Corporation of the Rights of the People (Corporación de Derechos del Pueblo -CODEPU), and the Chilean Group for Conscientious Objection “Neither Helmet nor Uniform” (Grupo Chileno de Objeción de Conciencia “Ni Casco ni Uniforme”-NCNU) (hereinafter “the petitioners”), alleging the violation by the Chilean State (hereinafter “the State” or “the Chilean State) of Articles 1(1), 2, 11, and 12 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) for failing to adapt its domestic legislation to the provisions of the Convention, to the detriment of Cristián Daniel Sahli Vera, Claudio Salvador Fabrizzio Basso Miranda, and Javier Andrés Garate Neidhardt, three Chileans who, having turned 18 years of age, were facing the obligation of fulfilling their compulsory military service, and who expressed their total and complete conscientious objection to military service and to participating in it.
2. The petitioners allege that the State is responsible for violating the alleged victims’ right to conscientious objection, with a direct detrimental impact on their freedom of conscience and religion; their right to the privacy; and the obligation to respect and ensure the rights established in the Convention. The State considers that there has been no violation of Articles 1(1), 2, 11, or 12 of the Convention, since the alleged victims have not been called to appear by any court, nor has any penalty been imposed on them for failing to comply with compulsory military service. The State considers, moreover, that the obligation to carry out one’s military service is a limitation on the rights of the individual that is authorized by the American Convention.
3. After the analysis of the parties’ arguments, the rights established in the Convention, and the rest of the evidence in the record, the Commission concludes in this report that the State is not responsible for the violation of Articles 1(1), 2, 11, and 12 of the American Convention, as alleged in this case.
II. PROCESSING AFTER THE ADMISSIBILITY REPORT
Friendly settlement
4. On October 6, 1999, the complaint was received at the Commission. On October 9, 2002, the Commission approved Report 45/02 on the admissibility of this case.[2] On October 28, 2002, the admissibility report was transmitted to the State and the petitioners, and the parties were notified that the Commission placed itself at their disposition in order to assist them in reaching a friendly settlement, pursuant to Article 48(1)(f) of the Convention, if they were interested in doing so. The Commission requested the parties to respond to the offer as soon as possible. Neither the State nor the petitioners expressed interest in negotiating a solution of this sort, and, therefore, the Commission decided to proceed with the preparation of the report on the merits.
5. On April 16, 2003, the State sent its response to the observations submitted by the petitioners on November 9, 2000, which were transmitted to the State on December 13, 2000. That communication was transmitted to the petitioners on June 23, 2003; they were asked to respond within 30 days. On August 6, 2003, the petitioners requested a 30-day extension to provide their answer; that request was granted on September 17, 2003. On January 30, 2004, the petitioners submitted their additional observations on the merits. On February 2, 2004, the Commission transmitted the pertinent parts of the petitioners’ observations, giving them two months to submit any observations. Once the two months had lapsed, the Commission did not receive any more information from the State.
III. POSITIONS OF THE PARTIES
A. Position of the petitioners
6. The petitioners argue that the alleged victims, on turning 18 years, in keeping with the current legislation of the Chilean State, are under an obligation to comply with the compulsory military service law. The petitioners argue that in December 1998, prior to the State drawing up the list of citizens who must render military service, which is published in March of each year, the alleged victims submitted individual requests to the notification office of the Recruitment Department of the General Bureau on Mobilization of the Chilean State, in which they expressed their conscientious objection to compulsory military service and to their participation in said military service.
7. The petitioners state that the alleged victims never received a response to the requests presented, and that despite the express objection of conscience, their names were included in the regular and compulsory call for military service. In addition, the three youths were summonsed to appear on March 18 and 19, 1998, at 8.00 a.m., so as to proceed through the normal channels to carry out that obligation. 8. As regards the requirement of exhaustion of domestic remedies, the petitioners argue that the alleged victims filed a writ to protect their rights (recurso de protección) before the Court of Appeals of Santiago, to protect their right to freedom of conscience, set forth in Article 19(6) of the Chilean Constitution. On March 22, 1999, the Court of Appeals of Santiago held the recurso de protección inadmissible. The petitioners filed a motion (recurso de reposición) to set aside this decision, which was rejected by the Court of Appeals of Santiago on March 29, 1999.
9. The petitioners argue that the Chilean State has violated the rights and guarantees contained in Articles 12 and 11 in connection with Articles 1(1) and 2 of the American Convention, to the detriment of Messrs. Cristian Daniel Salhí Vera, Claudio Salvador Fabricio Basso Miranda, and Javier Andrés Garate Neidhardt.
1. Alleged violations of the right to freedom of conscience
10. The petitioners allege that the obligation to perform military service constitutes a violation of the freedom of conscience of the young men Sahli, Basso, and Garate, as they have been subjected to restrictive measures that are an attack on their beliefs as to how they should carry out their life plans.
11. Similarly, the petitioners suggest that Article 12 of the American Convention establishes the obligation “not to thwart the legitimate exercise of considerations of conscience,” which encompasses “the obligations related to the performance of political and civic duties.”[3] Thus, the petitioners defined conscientious objection as “the conscious non-performance of a legal provision by reason of it being in open and clear confrontation with the life plan or personal considerations, in this respect, of the person subject to the imposition.”[4] The petitioners defend the position that conscientious objection to compulsory military service is part of the exercise of freedom of conscience, a right protected by Article 12 of the American Convention, and they cite in support of their position an amicus curiae brief filed by Amnesty International before the Commission in Case Nº 11.596 Luis Gabriel Caldas León (Colombia), a case still under study by the Commission.
12. In this context, the petitioners argue, the right to freedom of conscience, contained in Article 12 of the Convention, is transformed into a limitation on the State as regards interference with the individual’s personal sphere, and the individual is subjected to restrictive measures at odds with his or her most intimate beliefs as regards the realization of his or her life plans.
13. The petitioners argue that the Chilean legislation does not afford an opportunity, with respect to compulsory military service, to invoke conscientious objection, since the only exemptions are based on disability, or on a person’s special characteristics or privilege.[5] According to the petitioners, the only situation that could be called conscientious objection is the possibility afforded direct descendants of those victims of the human rights violations committed during the military government who are included in the report issued by the National Commission on Reparation and Reconciliation. This situation does not constitute conscientious objection, but is a mere exception based on a specific and exceptional historical-political situation that merits special treatment.[6]
14. The petitioners add that the various international human rights instruments that have been ratified by Chile enshrine the right to freedom of conscience and religion.[7] The various international mechanisms, and the international doctrine of the United Nations headed by the Commission on Human Rights, have organized an awareness-raising campaign since the mid-1980s to abolish compulsory military service and to incorporate into any legislation that makes military service compulsory, at the very least, conscientious objection as grounds for exemption. They argue that Chilean legislation does not provide for conscientious objection as an exception to compulsory military service, and that while Article 19(6) of the Chilean Constitution provides for the right of freedom of conscience and religion, as well as its free exercise, the Chilean courts and the administration of justice organs do not provide for conscientious objection as an expression of this right, thereby denying the exercise of a fundamental human right, enshrined by the Constitution and by the international instruments that are incorporated into Chilean legislation, leaving the petitioners defenseless vis-à-vis the laws that make military service compulsory. They stress that the youths have been deprived of “the ability to determine the way of life of their own existence,”[8] denying them a right inherent to their status as persons, and turning them into offenders (delincuentes), as provided for by the Law on Recruitment and Mobilization of Armed Forces.
15. The petitioners consider that the State is imposing a restriction on the freedom of conscience and religion prohibited by the American Convention that implies a “suppression of the minimal core content of the guarantee established in Article 12.”[9] In this way, petitioners argue, the State cannot use legitimate mechanisms of restriction that annul and render ineffective the rights enshrined in the American Convention. Thus the restriction imposed by the State becomes, petitioners argue, an absolute derogation of the minimal or core content of the right to freedom of conscience and religion, in violation of Article 29(a) of the American Convention. They add that the State, in not allowing the young men to exercise conscientious objection, deprived them of one of the most basic attributes of their right to freedom of conscience and religion.
16. They underscore that even though Article 12 does not expressly recognize the existence of a right to conscientious objection to compulsory military service, its dynamic interpretation, supported by the international case law and doctrine, lead to the conclusion that the American Convention protects this right.
2. Alleged violations of the petitioners’ right to a private life
17. The petitioners allege that the facts demonstrate that the State has violated the petitioners’ right not to be subject to arbitrary and abusive intrusions into their private life. They argue that the concept of private life, protected by Article 11 of the Convention, is not reduced to the protection that every person enjoys to ensure that matters that fall within his or her personal sphere of privacy not be disclosed or made public. Based on the case law of the European system, the petitioners argue that “the right to privacy constitutes a space of moral autonomy within which each individual can develop, without being subject to arbitrary meddling, all those matters that are a manifestation of such decisional autonomy and which represent his or her particular personal identity.”[10] The petitioners argue that they have been “detrimentally affected in their autonomous decisional space by the establishment of restrictions that not only have a detrimental impact on their capacity to exercise their rights independently, but – moreover – represent an attack on their very image as autonomous rational beings with respect to moral issues, and with respect to their honor and dignity as human beings.”[11]
18. The petitioners consider, moreover, that there has been an arbitrary intrusion in the private life of the alleged victims, in the context of the right contained in Article 11 of the American Convention. They argue that the concept of private life is not limited to the protection every person enjoys of not having issues that fall within his or her personal sphere disclosed or made public, but “covers the physical and moral integrity of a person.”[12] The petitioners affirm that on protecting a person’s moral integrity, one is guaranteeing the effective exercise of moral autonomy, that fundamental principle of democracies that it is important to accept the idea of individual free choice as to life plans and the adoption of ideals of human excellence, and that the State must not interfere in such a choice, limiting its role to designing institutions that facilitate the individual pursuit of those life plans and the satisfaction of that pursuit.[13]
19. They note that the youths Sahli, Basso, and Garate have been subjected to arbitrary intrusions into their private lives, since the burden of compulsory military service is not necessary for the security of all, is not proportional, nor falls within the circumstances of Article 32(2) of the American Convention, on not allowing them to exercise their rights independently, due to restrictions on their autonomous decisional space. They also call into question the State’s argument, when it notes that none of the petitioners has been subjected to any summons by the Armed Forces, or by a military tribunal or a civilian court, since the amnesty decreed in late 2000 impacted thousands of youths who had been punished or found guilty of not complying with compulsory military service. The mere existence of an amnesty law presupposes a scenario in which there are youths who have violated a legal provision in force.[14]
3. Alleged violations of the obligation to respect and ensure the rights enshrined in the Convention, without discrimination (Article 1(1)), and of the obligation to bring domestic legislation into line with those rights (Article 2 of the American Convention)
20. They argue that the State has a dual obligation: First, the obligation not to violate the human rights recognized in the Convention, and second, the obligation to adopt all measures necessary to ensure the full enjoyment of these rights. The petitioners argue that the Chilean State has not adopted all the necessary measures to bring its domestic legislation and practice into conformity with the provisions of the Convention, but rather that it is flagrant breach of it.
21. The petitioners argue that the failure to adopt norms that protect the situation of the alleged victims constitutes a violation of Article 2 of the American Convention. Finally, the petitioners argue that the lack of a rationale that would make it possible to exempt conscientious objectors from military service amounts to a violation by the State of the duty to ensure the rights established in the Convention, in particular, the duty to protect and effectively guarantee the right to freedom of conscience. Accordingly, they consider that the State’s failure to adapt its legislation and governmental action to the provisions of the American Convention represents a violation of the rights contained in Articles 1(1) and 2 of that instrument. They add that the absence of constitutional, statutory, and regulatory provisions cannot be invoked by States to exempt them from or to modify compliance with their international obligations.
B. The State’s position
22. The State has indicated in its brief of April 16, 2003, that it is undertaking a reform of the military service system, which in principle would be mostly voluntary, recurring to a lottery only if they are unable to cover the minimum number of persons needed with the voluntary system. This process would include all on an equal footing. Accordingly, it accepts that Chile’s domestic legislation does not provide any guarantee for those persons who consider that they cannot comply with compulsory military service for reasons of conscientious objection and that this would constitute a violation of the principle of equality before the law. During the hearing that was held on admissibility, the State clearly indicated that it is not possible to accept conscientious objection in Chile without a constitutional reform, which requires a complex process.[15]
23. The State affirms that the Constitution, at Article 19(6), recognizes the right contained in Article 12 of the American Convention, ensuring for all persons freedom of conscience, the right to express all beliefs and to practice all forms of worship not opposed to morality, good customs, or ordre publique. In addition, the State notes that the norm in question should be read together with the provision of Article 1(4) of the Constitution, which provides that: “It is a duty of the State to safeguard national security, provide protection to the population and the family, contribute to its strengthening, promote the harmonious integration of all sectors of the Nation, and ensure the right of persons to participate, with equal opportunities, in the life of the nation.” In addition, Article 90 of the Chilean Constitution states: “The Armed Forces are made up only of the Army, the Navy, and the Air Force, they exist for the defense of the homeland, they are essential for national security and to guarantee the institutional order of the Republic.”
24. The State asserts that from this perspective, the Constitution “reconciles its provisions so as to establish a correspondence between the rights and duties of Chileans, requiring them to bear certain public burdens for the common good.”[16] Article 12(3) of the American Convention, the State argues, explicitly affirms that the freedom to profess one’s own religion and one’s own beliefs is subject only to the limitations prescribed by law, and that are necessary for protecting security, order, health, and public morality, or the rights and freedoms of others.”[17] Along these lines, the State concludes that in keeping with the limitations set forth in Article 12(3), compulsory military service is a restriction on the right to freedom of conscience and religion that is based on the duty of citizens to contribute to the security and order of the country, and that the unchanging value of security and the objective of national defense legitimate this state practice, in keeping with the Convention.
25. The State argues that the Convention allows the limitation on the freedom of conscience to uphold certain immutable values, such as security, which, moreover, is essential for the exercise of the rights and freedoms that both the Chilean Constitution and the Convention recognized as basic and inherent to every person.”[18] It argues that compulsory military service fits within the concept of prevention for preserving national security, both internal and external, and cannot be considered a violation of the freedom of conscience and religion, but merely as a contribution to maintaining the country’s security. In addition, it argues that it does not require persons to do anything in the face of their most intimate beliefs “due to the fact that it is no more than military preparation or training for a pre-determined period.”[19] It adds that it is the temporary nature of compulsory military service that makes it such that “it does not constitute an attack on the right to determine one’s way of life or own existence.”[20] Therefore, it notes, compulsory military service is a contribution to national security that the State requires of youths for a determined and limited time.
26. As for the specific situation of the youths Sahli, Basso, and Garate, the State indicates that none of the complainants to this day “has received any summons from the Armed Forces, from a military tribunal or civilian court, or suffered any threat, coercion, been followed, prosecuted, deprived of liberty or had any civil, administrative, or criminal sanction whatsoever imposed for the facts that have led to the complaint in question” such that none of their human rights could have been violated by the State.[21] The State considers, therefore, that the complaint is unfounded and unjustified, and, accordingly, should be rejected for failure to characterize any violation of the American Convention. The State adds that in the last 20 years, no youth has been detained for failure to complete his or her military service. The State argues that “it does not see, from any angle, any injury suffered by the petitioners or the real foundation for their claims for the existence of some right recognized by the Convention that has been violated, therefore the conditions for the Commission to have competence are not present.”[22]
27. With respect to the right to privacy, the State considers that there is no violation of this right, thus military service is not an arbitrary or abusive demand on privacy, but rather is regulated by law, is part of the cultural experience of youths who must serve, and is considered by the American Convention as a legitimate restriction on the exercise of fundamental rights, in keeping with Article 32(1) of the Convention. It also argues that compulsory military service is nothing more than citizens’ contribution to securing the common good and the exercise of the rights and freedoms of a whole country. It adds “it is not more than training, martial instruction, that does not require the use of arms against other human beings, such that the limitation imposed does not entail the nullification or the complete inefficacy of the rights recognized and guaranteed.”[23] It concludes that this is the objective proportional to the rights and freedoms that the State recognizes for citizens.
IV. THE FACTS
28. In December 1998, prior to the State drawing up the list of citizens who must carry out military service, which is published in March of each year, the youths Cristian Daniel Sahlí Vera, Claudio Salvador Fabricio Basso Miranda, and Javier Andrés Garate Neidhardt presented individual requests to the notification office of the Recruitment Department of the General Bureau of Mobilization of the Chilean State in which they expressed their conscientious objection to compulsory military service and to their participation in such military service, as an arbitrary intrusion into their private lives and an arbitrary meddling in their life plans. Under the legislation in force in the Chile, every citizen, on turning 18 years of age, is under the obligation to complete compulsory military service.
29. The alleged victims never received a response to the requests submitted, and despite their express conscientious objection, their names were included in the ordinary and obligatory call to perform military service. In addition, the three were called to appear on March 18 and 19, 1998, at 8.00 a.m., to proceed to comply with this obligation in the regular manner. The young men did not present themselves, but they were never summonsed or prosecuted for their failure to appear.
30. Subsequently, the petitioners filed writ protective of their rights (recurso de protección) before the Court of Appeals of Santiago, alleging their right to freedom of conscience, provided for at Article 19(6) of the Constitution of the Republic of Chile.[24] On March 22, 1999, the Court of Appeals of Santiago held the writ to be inadmissible. The petitioners then filed a motion (recurso de reposición) to set aside this decision; which was rejected by the Court of Appeals of Santiago on March 29, 1999. The petitioners do not dispute the State’s argument that none had received any summons or suffered any threat or administrative or criminal sanction for the facts giving rise to the complaint.
31. While the State made several submissions to the Commission in this case, none controverted the facts as presented by petitioners.
V. ANALYSIS OF THE MERITS
A. General Considerations
1. Domestic law
32. The parties to the case do not dispute the facts; the issue in this case is purely one of law. The legal issue may be summarized as to whether Articles 11 and/or 12 of the American Convention create(s) a right to object, for reasons of conscience, to compliance with the domestic law as regards compulsory military service when the domestic law does not provide for such exemptions. Specifically the issue is whether “conscientious objector” status may be invoked by the three individual petitioners in this case, who were drafted into the Chilean military service and attempted to assert their right to an exemption on the grounds that such service would offend their conscience and beliefs.
33. Chilean law provides for compulsory military service but does not provide for conscientious objector status and consequently, all attempts by the petitioners to obtain relief from Chilean courts at the national level, failed. Chilean law does, however, exempt certain categories of individuals from military service. Article 17 of Decree Law N.º 2.306 exempts certain persons from compulsory military service.[25] Article 17 of this Decree Law, however, does not include persons outside a religious order who simply assert the right to freedom of conscience and as a corollary, the right to be “conscientious objectors.”
34. Decree Law N.º 2.306, which sets forth the norms regarding recruitment and mobilization of the Armed Forces, provides simply that all eighteen year olds (men and women alike) must register for obligatory military service.[26] Their names are included in a data base and they may be called up, until they reach their thirtieth birthday, to perform two years’ of military service. Once the individuals have registered, at the age of 18, they will be summoned for classification and selection in order to determine who will be inducted. Those who do not show up for possible induction when summoned will be held criminally liable.
35. Criminal liability for failure to appear for possible induction is set forth in Decree Law N.º 2.306. Article 72 provides:
Art. 72. Those who do not comply with the submissions required by this decree-law or who do not appear when called for the purposes of their classification and medical examination or fail to do so timely shall suffer the penalty of imprisonment in the minimum degree or a fine not less than one and not greater than ten times the minimum salary. The penalty provided for in the previous sentence shall be doubled for those who, having failed to appear the first time called, fail to appear the subsequent times.
In the instant case, despite the existence of the law, the State made no effort to arrest or otherwise prosecute the youths Sahli Vera, Basso Mirando and Garate Neidhardt, for failing to show up for possible induction when summoned, as provided for by the domestic law.
2. International Law
36. In the inter-American system no cases have as yet been decided on the issue of conscientious objection and the Commission has only made references to this issue outside the individual petition context.[27] Since both the United Nations and the European system have been called upon to interpret similar provisions in their respective human rights instruments, a brief review of their jurisprudence is useful as guidance in this case.
37. The American Convention does not expressly create or even mention a right to “conscientious objection”, the alleged right to not be required to comply, for reasons of conscience, with obligations imposed by law. The term “conscientious objectors” only appears once in the American Convention. No explicit mention of the term “conscientious objection” is made in Article 12, which sets forth the right to freedom of conscience and religion, but it is referred to in the article defining forced or compulsory labor.[28] Article 6 of the American Convention defines the right to be free from slavery or involuntary servitude, and Article 6(3)(b), following ILO Convention Nº 29 on the same subject, expressly excludes from the definition of forced or compulsory labor “military service and, in countries in which conscientious objectors are recognized, national service that the law may provide for in lieu of military service.” (Emphasis added)
38. In summary, and as will be concisely reviewed below, international human rights jurisprudence recognizes the status of conscientious objectors in countries that provide for such status in their national laws. In countries that do not provide for conscientious objector status, the international human rights bodies find that there has been no violation of the right to freedom of thought, conscience or religion. The European system has refused to recognize a right to conscientious objection within the larger context of the right to freedom of thought, conscience and religion (Article 9), due to the explicit reference to “conscientious objectors” in the article exempting military service or alternative service from the definition of forced or compulsory labor (Article 4(3) of the European Convention). The United Nations Human Rights Committee, in general, has explicitly recognized the existence of the right, as derived from article 18 (freedom of conscience) of the Covenant, but only in those States that have provided for conscientious objector status in their domestic law. In those States that have recognized conscientious objector status, the UN Human Rights Committee tends not to review the State authorities’ evaluation of the grounds for the granting or denial of such status despite its general admonition that “When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs.”[29] The Committee does appear to review whether there exists a belief system grounded in a coherent or “philosophical” framework, and is unwilling to accept mere self-definition as a conscientious objector. Once a belief system is identified, the Committee will not prefer one system to another or discriminate among them.
a. The United Nations’ and the European system’s treatment of the “right to conscientious objector” status
i. The United Nations
39. The United Nations system considers the right to conscientious objection to military service as a legitimate exercise of the right to freedom of thought, conscience and religion as articulated in Article 18 of the International Covenant on Civil and Political Rights and Article 18 of the Universal Declaration of Human Rights, and explicitly by the Human Rights Committee in General Comment No. 22 on Article 18 of the Covenant.[30]
40. In 1960, the Sub-Commission on the Promotion and Protection of Human Rights first affirmed the right to conscientious objection to military service in the context of freedom and non-discrimination in the matter of religious rights and practices. In 1981, the Sub-Commission appointed two Special Rapporteurs to study the issue. They submitted their final report in 1984, which recommended, inter alia, that states should recognize by law (a) the right of persons who, for reasons of profound religious, ethical, moral, humanitarian or similar conviction, refuse to perform armed service and, at a minimum, should extend the right of objection to persons whose conscience forbids them to take part in armed service under any circumstances.[31]
41. Numerous early cases decided by the UN Human Rights Committee, indicated that article 18 does not guarantee a right of conscientious objection, as in a right to freedom of compulsory military service on the basis of one’s conscientious objection to military force.[32] The Committee emphasized that the authorities had to be convinced of the petitioner’s ethical objections to military service to grant conscientious objector status.
42. In the Muhonen case, decided in 1981, the UN Human Rights Committee avoided deciding whether “article 18, paragraph 1, guaranteed a right of conscientious objection to military service.[33] In August 1976, Mr. Muhonen applied to be permitted to do alternative service instead of armed or unarmed service in the armed forces. The Examining Board rejected his application and he appealed. The appeal was also rejected. In 1978 he was called up, he reported and there refused to do any military service. Criminal court proceedings were initiated against him for refusal to do military service and he was sentenced to 11 months imprisonment. The Higher Court confirmed the verdict and he started to serve his sentence in June 1980. In the fall of 1980, while he was serving his sentence, the Examining Board granted him a new hearing and found in his favor. It stated that Mr. Muhonen had had the opportunity to explain his convictions personally to the Board and the Board found that he “has an ethical conviction within the meaning of the (…) Act. He was pardoned on March 27, 1981 and released from prison two weeks later.
43. The issue for the Committee was whether Mr. Muhonen was entitled to compensation in accordance with Article 14(6) of the Covenant.[34] Compensation was denied because the Committee held that Mr. Muhonen was not pardoned because his conviction rested on a miscarriage of justice. His conviction came about because the Examining Board in 1977 denied him the status of conscientious objector. He had failed to be present at the Board’s examination of his case in 1977, but he did appear in 1980 and managed to convince the Board of his ethical objections in person. According to Finnish law, “whoever refuses military service not having been recognized as a conscientious objector by the Examining Board commits a punishable offense. This means that the right to decline military service does not arise automatically once the prescribed substantive requirements are met, but only after due examination and recognition of the alleged ethical grounds by the competent administrative body.”[35]
44. In another conscientious objector case, L.T.K. v. Finland, the Committee held that the “Covenant does not provide for the right to conscientious objection.[36] The Committee dismissed the communication as incompatible with the Covenant ratione materiae. It found the complaint to be inadmissible in the following terms:
5.2 The Human Rights Committee observes in this connection that, according to the author’s own account he was not prosecuted and sentenced because of his beliefs or opinions as such, but because he refused to perform military service. The Covenant does not provide the right to conscientious objection, neither article 18 nor article 19 of the Covenant, especially taking into account paragraph 3(c)(ii) of article 8, can be construed as implying that right. The author does not claim that there were any procedural defects in the judicial proceedings against him, which themselves could have constituted a violation of any of the provisions of the Covenant, or that he was sentenced contrary to law. (Emphasis added)
Article 8(3)(c)(ii) of the Covenant expressly leaves it to the States parties to determine whether they wish to recognize refusal to perform military service for reasons of conscience:
3. (c) For the purpose of this paragraph the term “forced or compulsory labor” shall not include:
(ii) Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;
45. In 1987, the UN Human Rights Commission adopted resolution 1987/46, in which the Commission urged universal recognition of the right of conscientious objection to military service. It is clear, however, that by 1987, in its interpretations of the scope of the right to freedom of conscience, the Committee was still looking for more than a simple allegation of the right and that the author had to substantiate his claim. In a 1987 decision, V.M.R.B. v. Canada,[37] the UN Human Rights Committee found a complaint inadmissible in which the author contended that deportation proceedings had restricted his exercise of freedom of conscience or expression. The Committee found that this contention had been refuted by the State’s uncontested statement that, as early as November 1980, the author had been excluded from re-entering Canada on national security grounds and it found the communication to be inadmissible because the author’s claims were unsubstantiated.
46. In 1989, in resolution 1989/59, the UN Human Rights Commission affirmed the right to conscientious objection and appealed to States to amend their legislation to permit the exercise of the right of conscientious objection.
47. In 1991, the UN Human Rights Committee, in J.P. v Canada (446/1991), in dictum, recognized that Article 18 of the Covenant protects the right “to hold, express and disseminate opinions and convictions, including conscientious objection to military activities and expenditures. . .”.[38] The applicant, a Quaker, claimed that the use of a portion of her taxes for military or defense purposes violated her freedom of conscience and religion. The application was declared inadmissible by the Committee on the grounds that “the claim clearly falls outside the protection of article 18.”[39] The Committee distinguished between the private and public manifestations of the right to conscience, and accepted the penalization of the public manifestation of the act of conscience when it implicated a violation of the law.
48. In 1993, The UN Human Rights Committee in paragraph 11 of General Comment 22, which interprets the right to freedom of thought, conscience and religion, set forth in Article 18 of the Covenant on Civil and Political Rights, elaborated on the recognition of the protection for conscientious objection under this article and stated:
Many individuals have claimed the right to refuse to perform military service (conscientious objection) on the basis that such right derives from their freedoms under article 18. In response to such claims, a growing number of States have in their laws exempted from compulsory military service citizens who genuinely hold religious or other beliefs that forbid the performance of military service and replaced it with alternative national service. The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief. When this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs; likewise, there shall be no discrimination against conscientious objectors because they have failed to perform military service. The Committee invites States parties to report on the conditions under which persons can be exempted from military service on the basis of their rights under article 18 and on the nature and length of alternative national service.
49. The position of the UN Human Rights Committee was further elaborated in a number of concluding observations adopted following the examination of States parties’ country reports.[40] The Committee has expressed concern with respect to States that recognize the right to conscientious objection in a discriminatory manner, i.e. by granting exemption only to certain religious groups and not others and has recommended that States recognize the right to conscientious objection without discrimination, recalling that “[c]onscientious objection should be provided for in law ( . . . ) bearing in mind that Article 18 also protects the right to freedom of conscience of non-believers.”[41]
50. On March 10, 1993, in resolution 1993/84, the UN Human Rights Commission recognized the right of everyone to hold conscientious objections to military service, as a legitimate exercise of the right to freedom of thought, conscience and religion, as set forth in Article 18 of the Universal Declaration of Human Rights and Article 18 of the International Covenant on Civil and Political Rights and General Comment No. 22 of the UN Human Rights Committee, adopted at its forty-eighth session in 1993. Subsequently, the UN Human Rights Commission has affirmed this right in a number of resolutions.[42] In resolution 2000/34, the UN Human Rights Commission requested the Office of the UN High Commissioner for Human Rights to prepare a compilation and analysis of best practices in relation to the recognition of everyone to have conscientious objections to military service. The first preliminary report was prepared in 2002 (E/CN.4/2002/WP.2) and “outlines the right to conscientious objection to military service as protected at present in international law.” In its subsequent report, prepared in 2004 (E/CN.4/2004/55) the Office of the High Commissioner prepared a compilation and analysis of best practices in relation to the recognition of this right and noted as the first item: “(a) Acceptance of claim to be a conscientious objector accepted without further inquiry. Though most States undertake some form of inquiry into applications for conscientious objection to military service, Austria, Belarus and the Republic of Moldova conduct no further inquiry. Denmark, for example, requires a simple statement asserting that military service is against the applicant’s conscience, though a more formal process is applicable for those seeking conscientious objection during their military service”.[43]
51. In 1993, in Brinkhof v. The Netherlands, the UN Human Rights Committee was faced with the issue of whether differentiation in treatment as regards exemption from military service between Jehovah’s Witnesses and other conscientious objectors amounted to prohibited discrimination under Article 26 of the Covenant.[44] The “other” conscientious objectors were required to perform substitute service and if they refused to do so for reasons of conscience, they were prosecuted, and, if convicted, imprisoned. The Committee noted the State’s argument that the differentiation is based on “reasonable and objective criteria, since Jehovah’s Witnesses form a closely-knit social group with strict rules of behavior” and membership is said “to constitute strong evidence that the objections to military and substitute service are based on genuine religious convictions.”[45] The Committee held that the exemption of only one group of conscientious objectors to the detriment of all the others “cannot be considered reasonable” and that General Comment on Article 18 emphasizes that “when a right of conscientious objection to military service is recognized by a State party, no differentiation shall be made among conscientious objectors on the basis of the nature of their particular beliefs.”[46] The Committee, although it recognized the right to conscientious objector status, only recognized the right in those State parties to the Covenant that provided for conscientious objection in their laws. States that recognized the right to conscientious objection were obliged to grant it, free of discrimination, but by 1993, no State was required to create the right where it did not exist, echoing the provisions of Article 8(3)(c) of the Covenant and the Committee’s earlier jurisprudence.[47]
52. In Foin v. France, a case decided on November 3, 1999, the issue before the Committee was whether the specific conditions under which alternative service had to be performed could constitute a violation of the Covenant.[48] The Committee observed “under article 8 of the Covenant, States parties may require service of a military character and, in case of conscientious objection, alternative national service, provided that such service is not discriminatory.”[49] The author claimed that the French law requirement that alternative service be for 24 months as compared to 12 months for military service constituted discrimination under Article 26 of the Covenant. The Committee stated that all differences of treatment do not constitute discrimination and that the differentiation must be “based on reasonable and objective criteria.”[50] Further, it noted that “the law and practice may establish differences between military and national alternative service and that such differences may, in a particular case, justify a longer period of service, provided that the differentiation is based on reasonable and objective criteria, such as the nature of the specific service concerned or the need for a special training in order to accomplish that service.”[51] The State submitted that it doubled the length of service to test the sincerity of the individual’s convictions. The Committee was of the view that the reasons forwarded by the State did not refer to reasonable or objective criteria and did not make reference to the specific case at hand. Consequently, the Committee found a violation of Article 26 since the difference in treatment was not based on reasonable and objective criteria.
53. The dissent in Foin found that the longer service for conscientious objectors was based on reasonable and objective criteria and did not amount to discrimination.[52] The dissent indicates that the granting of conscientious objector status, which still remains optional with the State (given the renvoi back to Article 8), requires grounds of conscience and that mere opposition to military service would be “unacceptable.”[53]
54. In Westerman v. The Netherlands (682/1996), one of the leading cases considered by the UN Human Rights Committee on this issue, the applicant sought to be recognized as a conscientious objector but was refused by the Dutch authorities. Despite his objections, he was inducted into military service where he refused to perform military duty, which made him liable to be charged with a criminal offense. At the beginning of his military service, he was ordered to put on a uniform, which he refused. He refused any sort of military service because of his conscientious objections. He was tried and convicted for being a “total objector”, for refusing any kind of military service. The “total refusal” to do military service was an offense at the time it was committed under the old Military Criminal Code, as well as under the new Military Code. The State argued that the Covenant does not preclude the institution of compulsory military service and the question of whether States recognize conscientious objections to military service is expressly left to the States themselves.[54]
55. Dutch law provides that those who have conscientious objections under the Military Service Act may request recognition of their objections. Under the Act, conscientious objections are defined as “insurmountable objections of conscience to performing military service in person, because of the use of violent means in which one might become involved while serving in the Dutch armed forces.”[55] The author’s request was denied by decision of January 25, 1989 by the Minister of Defense on the ground that the objection advanced by the author –that he would not be able to take decisions for himself in the armed forces- did not constitute sufficient grounds for recognition under the Act, since it was mainly concerned with the hierarchical structure of the army and not necessarily related to the use of violence.[56]
56. Despite the fact that the UN Human Rights Committee in General Comment 22 expressed the view that the right to conscientious objection to military service can be derived from Article 18, with regard to the author’s claim that his conviction violated Article 18, the UN Human Rights Committee observed that “the right to freedom of conscience does not as such imply the right to refuse all obligations imposed by law, nor does it provide immunity from criminal liability in respect of every such refusal.”[57] The author sought recognition as a conscientious objector, but the Committee noted that in this case Dutch law requires that the recognition of conscientious objections against military service be based on one’s objection to the use of violent means.[58] The Dutch Minister of Defense decided that the petitioner’s objection that he would not be able to take decisions for himself did not constitute grounds for recognition under Dutch law.[59] In his appeal to the Council of State in February 1989, the author stated:
Under no condition, appellant will obey the legal duty to do military service in the Dutch armed forces, because the nature of the armed forces is contrary to the destination of (wo)man. The armed forces ask namely of their participants to give away the most fundamental and inalienable right that they have as a human being, namely the right to act accordingly to their moral destination or essential being. The ‘participator’ is forced to give away the right of say and to become an instrument in the hands of other people, an instrument that ultimately is directed to kill a fellow human being when these other people consider such necessary.
This instrument (or armed force) can only function well, when the moral capacities or moral intuition of the participators are destructed. Every human being who knows to open himself, to listen to his moral destination will agree that elimination of the armed forces out of our society is of the utmost importance. An importance that transcends the possible consequences of a protest according to the Penal law.
The Council of State was not convinced and rejected his appeal for conscientious objector status on February 12, 1990.
57. The issue as framed by the Committee was whether the imposition of sanctions to enforce the performance of military duty was an infringement of the author’s right to freedom of conscience. The majority of the UN Human Rights Committee noted that the State authorities evaluated the facts and arguments advanced by the author in support of his claim for conscientious objector status in the light of its legal provisions in regard to conscientious objection and that these legal provisions were compatible with the provisions of Article 18.[60] It is important to note that the Committee recognized the right to conscientious objector status under Article 18. The Committee concluded that the author failed to convince the State authorities that he was a conscientious objector opposed to “the use of violent means” and it decided not to substitute its own evaluation for that of the national authorities.[61] So, despite the fact that General Comment 22 states that the right to conscientious objection to military service can be derived from Article 18, “inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief”, and goes on to say that [w]hen this right is recognized by law or practice, there shall be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs”, the author’s allegation to the Council of State that members of the armed forces were required to abdicate their “right to act accordingly to their moral destination or essential being (…) and to become an instrument in the hands of other people, an instrument that ultimately is directed to kill a fellow human being”, which rings of a pacifist belief system, however clumsily articulated, was not recognized by the Committee. This pacifist belief system was heard by the dissent in this case.
58. The dissent noted that the State had no right to interfere with the applicant’s claim under Article 18 of the Covenant by denying the author conscientious objector status and imposing a term of imprisonment.[62] It reiterated the position set forth by the Committee in paragraph 11 of General Comment 22, that there should be no differentiation among conscientious objectors on the basis of the nature of their particular beliefs. Consequently, the dissent found that the applicant was the victim of a violation of Article 18.[63]
ii. The European system
59. Both the former European Commission of Human Rights (hereinafter “European Commission”) and the European Court of Human Rights (hereinafter “European Court”) have considered petitions dealing with claims of conscientious objection to compulsory military service and neither body has been willing to find that such a right exists under the European Convention. [64]
60. The European Commission declined to find a violation of Article 9, dealing with freedom of conscience and religion, in regard to conscientious objectors, addressing the issue instead through the conscientious objection exemption, under Article 4, to compulsory and forced labor.[65] In X v. the Federal Republic of Germany case (7705/76) the European Commission interpreted Article 9 in the light of Article 4 and decided that the sanctions taken by a state against conscientious objectors who refused to carry out civilian service in substitution for military service did not infringe their freedom of conscience.
61. In the 1970s, the European Commission, after stating the principle of freedom of thought, conscience and religion, set forth in Article 9(1) of the European Convention, looked to the consequences of the manifestation of one’s religion or belief in practice. In Arrowsmith v. the United Kingdom case (7805/77), the European Commission declared a petition inadmissible on the ground that the activities at issue did not constitute a “manifestation” of beliefs in the proper sense. The applicant had been prosecuted for distributing “pacifist” pamphlets concerning the activities of the British army in Northern Ireland. The leaflet cited ex-soldiers, one of whom says: “I’m not against being a soldier. I would be willing to fight to defend this country against an invader – I’d be willing to fight for a cause I can believe in. But what is happening in Ireland is all wrong.” The European Commission concluded that although this was an “individual opinion”, there had been no “manifestation of a belief” and that, accordingly, Article 9 had not been violated.
62. In the early 1980s, the European Commission took a formalistic approach when applications asserting a right of conscientious objection under Article 9 (comparable to Article 12 of the American Convention) came before it. It invariably found that the refusal to comply with the law was not the direct exercise of religious or conscience-driven practice. For example, in C v. U.K., the applicant, a Quaker, objected on religious grounds to have a proportion of his taxes used for military purposes.[66] The European Commission did not examine whether this was required by his religion but emphasized the narrow reach of Article 9(1) as being restricted to the personal sphere.[67] The obligation to pay taxes, it concluded, raised no issue of conscience.
63. Even if the jurisprudence of the European Convention does not recognize the right to be exempt from obligatory military service on grounds of conscientious objection, applicants have argued for a right of substitute service. The European Commission has dealt with these claims by a literal reading of Article 4(3) of the European Convention (comparable to Article 6(3)(b) of the American Convention), which specifically exempts military or alternative service from the definition of forced labor. This provision excludes “any service of a military character or, in the case of conscientious objectors in countries where they are recognized, service extracted instead of compulsory military service” from the Convention’s prohibition on “forced or compulsory labor”. The European Commission literally interpreted these words to mean that a State may, but is not required to, recognize conscientious objection, and only if it does, should it consider providing for alternative service to obligatory military service.
64. The authority of States to require persons to undertake compulsory military or civilian service was considered by the European Commission in Johnasen v. Norway 44 DR 155 (1985). The Norwegian Constitution imposed a general duty on male citizens to perform military service, although since 1922 conscientious objection to military service has been recognized. If a person objected to military service, he would be required to undertake civilian service. If he refused to perform civilian service then the case would be referred to the courts and he could be ordered to work at a special camp for the duration of his civilian service. If he did not attend the camp or refused to perform the work assigned to him then he would be held in prison for the remainder of his period of civilian service. The applicant, a pacifist, was opposed to both military and civilian service in that he considered the latter a form of support to the former. The authorities recognized him as a conscientious objector and required him to perform civilian service, which he refused to carry out. His case was referred to the courts, which found him in breach of his legal duties. He then complained to the European Commission alleging a breach of his European Convention rights. The European Commission declared his application inadmissible because the duty to perform civilian service:
. . . is an obligation fully compatible with the Convention. The Convention does not oblige the Contracting States to make available for conscientious objectors to military service any substitute civilian service. In States which recognize conscientious objectors and provide for alternative service it is fully compatible with the Convention to require the objectors to perform alternative service. This is clear from the text of Article 4(3)(b) of the Convention which specifically sets out that service extracted from conscientious objectors instead of compulsory military service is not to be regarded as “forced or compulsory labor.” [68]
As regards the applicant’s argument that compulsory civilian service violated his freedom of conscience, the European Commission stated:
When interpreting this provision, the Commission has taken into consideration Article 4(3)(b) of the Convention . . . Since the Convention thus expressly recognizes that conscientious objectors may be required to perform civilian service it is clear that the Convention does not guarantee a right to be exempted from civilian service. … The Convention does not prevent a state from taking measures to enforce performance of civilian service, or from imposing sanctions on those who refuse such service .[69]
65. Despite the strict construction of these provisions by the European Commission, there is debate in the Council of Europe on the issue of whether an individual should be exempted from performing public obligations, especially military service, deriving from a right to freedom of conscience. The Parliamentary Assembly of the Council of Europe, as early as 1967, adopted Resolution 337(1967) deriving a right to conscientious objection from Article 9 of the European Convention:
1. Persons liable to conscription for military service, who, for reasons of conscience or profound conviction arising from religious, ethical, moral, humanitarian, philosophical or similar motives, refuse to perform armed service shall enjoy a personal right to be released from the obligation to perform such service.
2. This right shall be regarded as deriving logically from the fundamental rights of the individual in democratic Rule of Law States which are guaranteed in Article 9 of the European Convention on Human Rights.[70] [Emphasis added.]
66. In 1983, the European Parliament adopted its first resolution on the issue which noted that “protection of freedom of conscience implies the right to refuse to carry out armed military service and to withdraw from such service on grounds of conscience” and stated that “no court or commission can penetrate the conscience of an individual and that a declaration setting out the individual’s motives must therefore suffice in the vast majority of cases to secure the status of conscientious objector.”[71]
67. On April 9, 1987, the Committee of Ministers of the Council of Europe adopted Recommendation No. R (87)(8) that set forth the right to alternative service in States that provided for obligatory military service:
Anyone liable to conscription for military service who, for compelling reasons of conscience, refuses to be involved in the use of arms, shall have the right to be released from the obligation to perform such service, on the conditions set out hereafter. Such persons may be liable to perform alternative service. (Emphasis added)
The procedure set forth is as follows:
States may lay down a suitable procedure for the examination of applications for conscientious objector status or accept a declaration giving reasons by the person concerned; With a view to the effective application of the principles and rules of this recommendation, persons liable to conscription shall be informed in advance of their rights. For this purpose, the state shall provide them with all relevant information directly or allow private organizations concerned to furnish that information;
Applications for conscientious objector status shall be made in ways and within time limits to be determined having due regard to the requirement that the procedure for the examination of an application should, as a rule, be completed before the individual concerned is actually enlisted in the forces;
The examination of applications shall include all the necessary guarantees for a fair procedure; An applicant shall have the right to appeal against the decision at first instance;
The appeal authority shall be separate from the military administration and composed so as to ensure its independence;
The law may also provide for the possibility of applying for and obtaining conscientious objector status in cases where the requisite conditions for conscientious objection appear during military service or periods of military training after initial service.
68. Van Dijk and van Hoof note that the Committee of Ministers’ Recommendation has no binding force, “but still it can be considered as an authoritative interpretation, which cannot simply be ignored by the national authorities and the Strasbourg institutions.”[72]
69. The European Commission, however, co |
