29 January 1993

Doc. 6752

1403-28/1/93-1-E

REPORT

on the right to conscientious objection to military service

(Rapporteur: Mr RODOTÀ,

Italy, Independent Left)

Summary

      The recognition of conscientious objection as a fundamental right is spreading and gaining strength but there is concern at the situation of various categories of conscientious objectors in Europe.

      The Committee of Ministers should revise its Recommendation No. R (87) 8 and member states should bring their national law and administrative practice into line with the principles of this recommendation. In addition the right to conscientious objection to military service should be incorporated in the European Convention on Human Rights.

I. Draft recommendation

1.       The Assembly, recalls that for the last twenty-five years it has always come out clearly in favour of conscientious objection to military service.

2.       Recognition of conscientious objection as a right is spreading and gaining strength in a number of countries, following an irreversible trend, and is becoming increasingly accepted including as a constitutional right.

3.       The Assembly is concerned at the situation of various categories of conscientious objectors in countries such as Greece.

4.       It reaffirms the principles set out in its Resolution 337 (1967) and Recommendation 816 (1977), and in Recommendation No. R (87) 8 of the Committee of Ministers.

5.       The Assembly recommends that the Committee of Ministers:

i.       invite the governments of member states to bring their national law and administrative practice into line with the principles set out in Recommendation No. R (87) 8;

ii.       introduce the right of conscientious objection to military service into the European Convention on Human Rights;

iii.       revise Recommendation No. R (87) 8 in the light of the observations made by the Assembly in Opinion No. 132 (1987) and of the developments that have taken place in the legislation of a large number of member states, in particular with respect to:

      a.       ensuring the civilian nature of alternative service, which should thus be carried out in forms of service other than military and implies that conscientious objectors must be subject to the civilian legal system;

      b.       applying reasonable measures in case of total refusal on conscientious grounds, and to conscientious objection after the date of actual conscription;

      c.       the length of alternative civilian service, which should not be of punitive nature.

II. Explanatory memorandum

by Mr RODOTÀ

1.       The role of the Council of Europe

      Among all international organisations, the Council of Europe is most certainly the one which has paid the greatest and most continuing attention to conscientious objection. The European Convention on Human Rights was the first international instrument in which conscientious objection gained recognition in its own right.

      The subject has since been dealt with on many occasions in a number of documents. The earliest texts relating to this important matter are Recommendation 478 (1967) and Resolution 337 (1967) of the Parliamentary Assembly. Resolution 337 (1967) laid down basic principles and was followed by Order No. 336 (1977) and Opinion No. 132 (1987). The Committee of Ministers adopted Recommendation No. R (87) 8 on conscientious objection, which, it will be seen, postdates the first basic Assembly text by twenty years. It should be noted that the Council of Ministers did not approve any of the amendments proposed by the Assembly in its Opinion of 1987.

      Conscientious objection has also been discussed in other international bodies. As regards the issues dealt with in this draft report, Recommendation 1989/59 of the United Nations Commission on Human Rights, which regards conscientious objection as an example of freedom of thought, conscience and religion, is particularly important.

      The European Parliament dealt with this subject in its Resolution of 16 February 1983, which favours the inclusion of conscientious objection to military service in the European Convention on Human Rights; and in its resolution of 27 October 1989, relating chiefly to alternative civil service (which may be performed even in a Community country other than that of which the objector is a national, or in a third world country) but containing in addition an important provision on the possibility of objecting even after military service has begun.

2.       Conscientious objection: definition and general considerations

      From the legal point of view, conscientious objection may be defined as rejection of a law by an individual required to comply with it. The reasons for rejection should stem from the conscientious objector's convictions, based on premises which are incompatible with those underlying the law contested. This produces a conflict between different types of loyalty: the loyalty owed by the citizen to the requirements of the legal system to which he belongs, and loyalty to the system of values - religious, philosophical, ideological, political - on which the individual bases his own life and behaviour patterns. Conflict may take an individual form, when the objection is made by an isolated individual, or be collective, in the case of a group of people who seek to assert their own position in ways which will specially emphasise the fact that it is a shared one.

      Conscientious objection has in recent times taken on special social and political significance, above all in relation to military service. It may take the form of a total refusal to perform military service, precisely because it is military, hence potentially bound up with training for warfare; in such a case we may speak of absolute objection. But it may also be limited to a refusal of all aspects of military service which involve the personal use of arms; this may be called relative objection. As regards the reasons for objection, a distinction may be drawn between total objection, when an individual refuses to perform military service under any circumstances whatsoever, and partial objection, in respect of a particular war or specific military operation (an example which comes to mind is the Vietnam war, and the refusal, still today heatedly debated, of many young United States citizens to take part in it).

      However, whether on general lines or in a particular case, conscientious objection cannot be regarded as synonymous with the refusal of military service. The fact is that, particularly in recent times, objection has taken on many forms, in a great variety of sectors. Suffice it to note here the recognised cases of conscientious objection by medical practitioners to abortion laws (see for example Section 9 of the Italian Law No. 194 of 22 May 1978) or by scientific researchers in biology and genetics (see, for the United Kingdom, Section 34 of the Human Fertilisation and Embryology Act 1990). The possibility of objecting has since been demanded in many other instances: many Italian citizens have expressed objection by refusing to pay the proportion of income tax corresponding to military expenditure in the state budget (fiscal objection); French pharmacists have refused to sell syringes to drug addicts without a prescription; and objection has been expressed by the staff and research personnel of firms directly or indirectly concerned with the armaments industry, and by members of a number of religious faiths or avowed atheists who refuse to take the oath by using a religious formula.

      Thus conscientious objection tends to take the form of a right of a general nature which is an expession of absolute incompatibility between personal convictions and the rules in force in a specific community (the State or the firm). The reason for this widespread demand for the legitimisation of conscientious objection is to be found in certain characteristics of present-day society. These include a heightened emphasis on pluralism as a value; the declining possibilities of referring to a system of values which are commonly recognised and accepted (or imposed by a ruling class); an increasingly widespread and deeply-felt need for a system of ethics, frequently in opposition to the traditional enunciation of problems in a strictly legal context (many countries now have ethical committees which review activities in the sectors of biological and genetic research). All this gives renewed strength to the conscientious motivations which sustain individuals and groups as they carry out specific activities, thus widening the sphere in which objection may be expressed.

      From the institutional and social point of view, conscientious objection is a conflict-solving technique of a very different nature from that of reaching a compromise. Compromise, as pointed out by Hans Kelsen, is one of the features of democratic systems. He defines it as a method of reaching a settlement which is neither entirely in conformity with the interests of one party nor entirely contrary to those of the other. The limitations on recourse to compromise have been aptly noted by the writer Robert Musil, who stresses the vainness of the efforts of those who "seek community in diversity". This is precisely a feature of situations in which recourse is had to the formula of conscientious objection. Here we are faced with irreconcilable differences, with aims which each of the parties regards as non-negotiable and which therefore make any kind of compromise impossible. By means of conscientious objection the conflict is settled without a compromise, but with due respect for and maintenance of the various positions in the case, without any one of them being accorded paramount importance.

      Conscientious objection is thus seen as an indispensable facility in a pluralist society. It alone can make possible the existence, side by side, of values which would otherwise inevitably be in constant conflict. No one of the parties involved is sacrificed, and no one claims to impose his will on all the others.

      This applies not only to conscientious objection. It is a matter of a more general nature, which concerns the very role of legislation in society today. Laws are always at grips with internal situations in which there are conflicting values, all firmly rooted and structured, none of which can be sacrificed entirely without provoking further, even deeper conflicts. There are a growing number of cases in which the law tends to be structured more as a ruling on compatibility between cultures and values than as a final ruling on the supremacy and imposition of any one of the positions concerned. One of the most striking cases is precisely that of conscientious objection.

3.       Conscientious objection and constitutional principles

      It is significant that many constitutions in the post-war period have explicitly recognised on general lines the need for full respect of freedom of conscience. In particular, they recognise the right of conscientious objection, either absolutely or with reference solely to the case of military service. This can now be regarded as a well-established trend, spelled out at length in the 1948 Universal Declaration of Human Rights (Article 18, on freedom of conscience), the 1966 International Covenant on Civil and Political Rights (Article 18, also on freedom of conscience) and above all in the European Convention on Human Rights, which not only reaffirms the guarantee of freedom of conscience (Article 9) but refers explicitly to objection in Article 4.2.b.

      Technically speaking, the law which most clearly expresses the right of conscientious objection is the Basic Law for the Federal Republic of Germany. This was deliberately designed as a reaction against the theory and practice of the Nazi period, when all individual freedom of judgment was inevitably forced, often in tragic circumstances, to bow to the totalitarian reason of state. Article 4.3 states that "No one may be compelled against his conscience to render war service involving the use of arms. Details shall be regulated by a federal law." This wording is obviously more binding than that, for example, of Article 109 of the Norwegian Constitution (which recognises only the possibility of "restrictions" on the application of the principle of compulsory military service); it is more binding than that of Article 189 of the Constitution of the Netherlands (which speaks of "the conditions upon which exemption may be granted on account of serious conscientious objections"); and of Article 30 of the Spanish Constitution (which states that "The law shall regulate, with the proper safeguards, conscientious objection as well as other grounds for exemption from compulsory military service; it may also impose a form of social service in lieu there of"). By virtue of its inclusion in the overall constitutional system, the German text is more binding than Article 41 of the Constitution of the Portuguese Republic, even though this uses clearly binding language ("The right of conscientious objection shall be recognised, provided that conscientious objectors shall be required to perform unarmed service for a period identical with that of compulsory military service"). Conscientious objection is included in the German Basic Law among the basic rights, and Article 19 (2) of the German Basic Law precludes any possibility of the "essential content of a basic right" being encroached upon, thus protecting it against a revision of the Constitution.

      Naturally it is not enough to quote one text in order to draw definitive conclusions as to the importance of conscientious objection in a legal system. There are states which have no statutory text on the subject but make fairly liberal provision for conscientious objection. And there are states which do not regulate conscientious objection on the scale to be expected from their declared basic constitutional principles; but this shows that even states in which opposition to conscientious objection persists have been forced to admit that there is now a trend towards recognising it in constitutional texts.

      A specific difficulty in recognising conscientious objection may arise in states which make particularly binding provision in their constitutions for compulsory military service. An example is the Constitution of Greece, which states in Article 4.6 that "Every Greek capable of bearing arms is obliged to contribute to the defence of the Fatherland as provided by law". The justifications for the present limitations to conscientious objection, and the specially severe treatment of certain categories of objectors, are based precisely on this provision (and the fact that it cannot be changed before 1992).

      The provision in the Greek Constitution can be compared with Article 52 of the Constitution of the Republic of Italy, which states that "The defence of the country is a moral duty of every citizen. Military service is compulsory, within the limits and in the manner laid down by law". Here also it seems that no provision is made for the recognition of conscientious objection, or for any kind of alternative service performed in a non-military context. However, the Italian Constitutional Court, in Judgment No. 164 of 1985 (confirmed by subsequent judgments), has ruled that the duty to defend one's country does not necessarily require the performance of military service, but may also be discharged by "suitable community service not involving the use of arms". There is a rider to this conclusion to the effect that the Constitution refers to the law regarding the limits on military service and the manner in which it is performed. The Constitutional Court states that it can be argued that "in certain circumstances, armed military service may be replace by other individual types of service of equivalent importance, comparable in concept to the defence of the country". It may be worth noting that in developing this kind of argument the Italian constitutional judges maintained that as a rule civilian service should never be of longer duration than military service, except in cases where longer duration - "kept within narrow and reasonable limits" - is warranted by "training requirements", that is to the time needed for the special training of the citizen to perform a civilian type of service (Judgment No. 470 of 1989). These judges also considered it unlawful to submit conscientious objectors who have been allowed to perform such civilian service to the jurisdiction of military courts. It is obvious that this is an interpretation designed to adjust the Constitution to new requirements; it confirms the trend in practice towards increasingly wider recognition of conscientious objection, with arguments which, in the same way as the reference to the law, can be used to overcome difficulties and criticisms even in systems different from the Italian one.

      The observed trend towards growing recognition of conscientious objection, even beyond the case of military service, raises the more general problem of the desirability of explicitly recognising objection as a basic right, in order to give practical expression to freedom of conscience. As noted above, conscientious objection is now a legal facility typical of a pluralist society in which different values are all seen to exist side by side. I believe that this consideration, together with that of striking a balance with other constitutional principles and concerns, should be borne in mind in assessing the characteristics to be ascribed to conscientious objection as a basic right.

      Taking this approach, I shall confine myself here to suggesting considerations of a general nature relating to possible cases of objection in areas other than military service. In any event, it is obvious that the possibility of widening the rules governing objection and the manner in which it may be expressed should respect the principle of the equality of all citizens. This does not mean that, within "reasonable" limits, there is no possibility of making provision for a slight degree of discrimination or conditions in favour of the objector. But the basic principle should be precisely that of genuine equality of treatment between objectors and non-objectors.

      Take for example the case of an objection to paying income tax (fiscal objection). Should it eventually be recognised as a right, this should not result in the payment of less tax by the objector but in the earmarking of part of the tax for purposes other than military expenditure. Here however a problem arises. War is now increasingly rejected as a means of solving international disputes; and, in any event, it is considered that in future, recourse to war should cease to be the prerogative of nation states and should become the responsibility of international bodies (headed by the United Nations). It is precisely consideration of this trend which gives special legitimacy to the objection to national military expenditure. But what would happen if the same procedure were adopted for expenditure on welfare, or aid to immigrants, or financial support to less developed regions, which objectors might wish to replace by investment in other sectors? If citizens were fully entitled to indicate the purposes for which their taxes should be used, there would be a trend towards a substantial transfer to citizens of powers now exercised by representative assemblies. Such assemblies would lose their budgetary role, and this would make it difficult to establish a coherent national financial policy and would change the very nature of the political and institutional system.

      In other cases, unconditional recognition of the right of conscientious objection might be directly prejudicial to respect for the rights of others. This has happened in countries such as Italy, where the large number of objectors among doctors and nursing staff has made it extremely difficult in some regions for women to obtain an abortion, which they are legally entitled to request and have performed in specific circumstances.

      Naturally, this problem cannot be solved by restricting the right of conscientious objection in the case to individuals whose right to objection has already been recognised. It is more reasonable to take the view that, since public authorities are required to plan the operation of health services at a level which will make it possible to cope with requests for abortion, they should introduce personnel recruitment measures which will preclude the possibility of conscientious objection in the future. The fact is that candidates for work know what is involved; they can assess its compatibility with their own convictions, and should they consider it incompatible, they should give up the idea in advance.

      However, the question becomes more complicated later on. One of the controversial issues arising in connection with present regulations regarding conscientious objection to military service is the possibility, or impossibility, of objecting after military service has begun. In practice, refusal on conscientious grounds may be triggered off at a later stage, after a particular activity has begun, precisely because at that stage the individual is able to see at first hand what is involved. (In the United Kingdom, objection is allowed at a later stage, but this is probably linked the fact that military service is not compulsory rather than to grounds of principle). Going beyond subjective values, however important these may be in matters of conscience, one can conceive a system which would admit objection in the event of changes which either radically transform the overall situation (for example the emergence of a particularly destructive weapon) or alter the nature of the activity performed by the individual (for example when a factory switches over from producing kitchen stoves to armaments production).

      A further general limit to the widening of conscientious objection may arise in cases where, as it were, objection enters into conflict with one of its own premisses. To return to what is said above on conscientious objection as one of the facilities typical of a pluralist society, it may be argued that conscientious objection in the field of education is legitimate if it is an expression of the refusal of denominational religious teaching. It is not however legitimate if it is the refusal of a type of school, such as a state school, which is precisely the place for learning about and comparing different attitudes. Without such schools, a pluralist society will develop into a collection of ghettos in which the ability to understand and respect the views of others is stifled, and in which the foundations are laid for bitter conflicts which may lead ultimately to the denial of freedom of conscience for others, thus violating the very rules of pluralism. This is not intended in any way to suggest that individuals may be compelled to attend a state school. It merely means that it cannot be argued that "objectors" are entitled to state finance if they choose a private school.

4.       Conscientious objection in the legislation of each nation:

      problems and outlook for the future

      The potential for expansion of the scope of conscientious objection can be grasped still more clearly if one takes a look at ordinary legislation. The Committee on Legal Affairs is already in possession of copious documentation, consisting of the study presented in 1984 by the Quaker Council (AS/Jur (36) 4), updated in 1985 (AS/Jur (36) 4 corrigenda), and the excellent memoranda presented by Mr de Kwaadsteniet (AS/Jur (38) 3; AS/Jur (41) 17; AS/Jur (41) 17 addendum; AS/Jur (41) 17 addendum II).

      Taken as a whole these documents reveal a quantitative and qualitative widening of the area covered by conscientious objection. From the quantitative point of view, stress should be laid on the growing number of countries in which objection is being recognised (a specially important development in Central and Eastern Europe, for example in Hungary, with its National Defence Act). From the qualitative point of view, many laws already in force have been notably improved as regards consideration of requests by objectors, the length of alternative civilian service and the manner in which it is performed, objectors' rights and the courts to which objectors are subject. This gives practical confirmation of the trend for conscientious objection, already approved in principle, to be fully accepted as a right.

      Especially worth mentioning is the new Italian law approved by parliament at the end of 1991, though it has not yet entered into force for procedural reasons (the observations made by the President of the Republic before the upper and lower Houses, which parliament was unable to discuss since it was dissolved for a new general election to be held. The text of the law will be re-examined by parliament in the coming weeks). Encouraged by the markedly innovative judgments of the Constitutional Court, parliament completely overhauled the previous Law No. 772 of 1 December 1972 by introducing provisions which include: equalising the duration of military service and alternative civilian service; a simplified procedure for examining requests by objectors, which must however be refused if the objector has previously applied to join a military or civilian body in which arms are used, if he holds a licence to carry arms, or if he has been convicted of an offence involving carrying arms; the possibility for the objector to express preferences for the type and location of civilian service; recognition that those granted the status of objector should be subject to ordinary criminal courts; and the establishment of an independent National Civilian Service.

      Examination of the texts available, of the controversial cases which have arisen at this later stage (reported chiefly by Amnesty International and various objectors' organisations), and of debates in various countries bring out the following questions worthy of consideration by the Council of Europe, some of which should be the subject of a recommendation (a draft of which is here proposed).

A.       The trend noted, and the scope of the current debate, suggest that the time is ripe to include the right of conscientious objection in the European Convention on Human Rights. Since there is still no agreement, because of the problems described above, on the desirability of formulating a general right of conscientious objection, inclusion in the convention should relate solely to the right of conscientious objection to military service.

      As far back as 1977, in 1977 Recommendation No. 816 was couched in these terms, with a suggestion, subsequently approved by the European Parliament in the above-mentioned Resolution of 16 February 1983, to the effect that the proposal be taken up again and a fresh invitation made to the Committee of Ministers to move in this direction. The Committee on Legal Affairs might work out the details of the proposed recommendation on the basis of the earlier recommendations, taking advantage of the opportunity to include recognition of the new right in the convention or in another protocol thereto.

      The fact is that one cannot consider Article 4.2.b of the convention to be a satisfactory solution, since it has always been interpreted by the European Commission on Human Rights (from the Grandrath Case No. 2299/64 onwards) as not imposing on member states the recognition of conscientious objection as a right.

B.       The management of alternative civilian services should be entrusted to bodies other than the Ministry of Defence. Some countries (Germany, Spain, Sweden) have special national offices dealing with conscientious objection, which run and co-ordinate civilian service for objectors. In other countries (Austria, Denmark) the responsible government department is the Ministry of Social Affairs. Since states are free to choose the way in which they organise civilian service, it should be clearly stated that the management of civilian service should be independent of the military structure, which is not in any case equipped to run activities of a social nature.

C.       In view of the civilian nature of the service to which they are assigned, conscientious objectors should be subject to ordinary criminal courts.

D.       Requests by conscientious objectors should be examined on the basis of objective criteria. Refusal should be based on typical cases specifically indicated by law, and should not be left purely to the discretion of administrative bodies. In the report to the European Parliament by the parliamentarian Barbara Schmidbauer (doc. A3-15/89/Part B) it is rightly stressed that "no court or commission is in a position to investigate the conscience of an individual".

E.       Conscientious objection, in the form which it has taken throughout its history and in the texts recognising it, logically implies that the right of the citizen to perform civilian service, in the full sense of the term, should be recognised. This means non-uniformed service in a non-military organisation.

      An earnest appeal should therefore be addressed to all the countries which still maintain contrary views (first and foremost Greece) to comply with the logic of this argument, the only one which respects the principles of freedom of conscience.

F.       A refusal to perform any kind of compulsory service, whether civilian or military, cannot be taken into account in legal systems which make specific provision for such an obligation. Otherwise, this would be tantamount to granting a concession to certain categories of citizens, and would be an obvious violation of the principle of equality. A Swiss Bill suggests that it should be made compulsory - on the basis of a legal, not an administrative, decision - for those refusing both military and civilian service to perform a specific type of work. Where the law insists on a criminal sanction, the punishment should be of short duration and the conditions of detention should not be specially severe.

G.       The possibility of allowing for the expression of an objection at any time, even after military service has begun, has been criticised on the grounds that it would permit the interruption of military service by a unilateral decision. This question is however being studied further, at least as regards situations in which it has been verified that the type of service differs substantially from that about which the citizen was informed at the time of call-up.

5.       Conclusions

      The importance of the theme of conscientious objection has been visibly growing in the recent years. This is not only the effect of a general maturing of attitudes or a more reasonable discussion of the problem. It is also the result of developments in international relations which increasingly cast doubt on the necessity and acceptability of a military solution to problems.

      A decision to adapt constitutional principles, ordinary legislation and administrative practice to the new reality of conscientious objection is not something which is being forced on us. On the contrary, it reflects a situation in which military requirements are declining, while social demands are on the increase. It is no accident that the European Parliament has already discussed the possibility of providing for alternative civilian service, possibly to be performed in third world countries.

      Seen in this context, conscientious objection to military service is not only a way of respecting the individual motivations of citizens. It also becomes a way of freeing energy for the performance of activities which are of special importance to not only the national but also the international community. It thus becomes a major form of "social investment", corresponding to the desire of countless young men to work in key sectors of society (many forms of civilian service involve more constraints than military service).

      It is therefore incumbent on the Council of Europe to continue to work on these lines, with ever greater commitment than in the past. But positive results can only be achieved if genuine co-operation is possible between the Parliamentary Assembly and the Committee of Ministers, which has not been the case to date. It would be helpful for an earnest appeal on these lines to be made by the President of the Assembly and the Chairman of the Committee on Legal Affairs.

Reporting committee: Committee on Legal Affairs and Human Rights.

Budgetary implications for the Assembly: None.

Reference to committee: Order No. 366 (1977).

Draft recommendation: Adopted by the committee on 14 December 1992.

Members of the committee: Lord Kirkhill (Chairman), Mr Strimitzer (Alternate: Schwimmer), Mr Jansson (Vice-Chairmen), MM. Akarçali, Amaral, Arnalds, Bartodziej, Bindig, Borg, Candal, Cardelli, Chevalier, Columberg, Espersen, Franck, Fry, Fuhrmann, Galanos (Alternate: Hadjidemetriou) , Guenov (Alternate: Stoilov), Gundersen, Guzzetti, Hagård, Mrs Haller, MM. Karcsay, Kempinaire, Mrs Lentz-Cornette, MM. Loutfi, Markiewicz, Maroni, Mimaroglu (Alternate: Güner), Nolan (Alternate: O'Brien), Nuñez, Oehry, Rodotà, Rodriguez Gomez, Rokofyllos, von Schmude, Mrs Soutendijk-van Appeldoorn, MM. Stamatis, Stoffelen (Alternate: Jurgens), Tabajdi, Vogel, Ward, Worms, N ... (Alternate: Fiala) N ... (Alternate: Kontra).

N.B. The names of the members who took part in the vote are in italics.

Secretaries to the committee: Mr Plate and Ms Coin.