In 2008 the Los Andes University Public Interest Group (G-DIP), as a result of an earlier research project conducted jointly with the aid agency Civis and Conscientious Objectors’ Collective Action (ACOOC), filed a public action suit challenging the constitutionality of Article 27 of Law 48 of 1993. This article defines which persons are exempt at all times and places from performing mandatory military service.
This lawsuit led to Constitutional Court sentence C-728 of 2009. The sentence recognizes conscientious objection to mandatory military service for religious, philosophical and moral reasons as a fundamental right derived from the right to freedom of conscience. Although this is an emblematic ruling, the debate on conscientious objection to mandatory military service is currently as controversial as it was before 2009.
How to guarantee that the right to conscientious objection to military service be adequately protected?
How to achieve the recognition of conscientious objection in law and in practice when faced with a State with extremely militaristic policies? The Court, for example, established requirements for conscientious objectors to be declared as such in order to prevent objectors from abusing the right. This is problematic in itself and raises several questions, including: What criteria are admissible and suitable to recognize peoples’ conscience?
Furthermore, the Constitutional Court did not declare the unconstitutionality of Article 27 of Law 48 of 1993. The Court’s response, without prejudice to the recognition of the right, was reduced to exhorting the Colombian Congress to regulate the mentioned right. Two years after the sentence, it is apparent that this request to the Congress has been insufficient, or has been unduly interpreted, to protect the right to conscientious objection. The competent authorities, such as the Colombian Army and the Ministry of Defence, have been reluctant to guarantee the right to conscientious objection until this right is regulated by the legislature.
This position is truly troubling and serious for three reasons:
- The regulatory process for this right has been delayed. The United Nations Human Rights Committee (HRC), in its concluding observations for Colombia in mid 2010, even asserted that it was concerned by the lack of progress in the legislative changes needed to recognize conscientious objection. The HRC contended that Colombia should without delay adopt legislation recognizing and regulating this right.
- Constitutionality rulings issued by the Court require mandatory compliance, especially if the existence of a fundamental right is recognized in these rulings, as is the case.
- The guarantee of the fundamental right to conscientious objection to mandatory military service can not be conditioned upon the existence of a law, as this is a directly applicable right.
Neither has legal action been a fruitful avenue to achieve the effective guarantee of conscientious objection. The tutela legal action for the protection of constitutional rights, mentioned in the Court sentence, has become the sole, if rarely successful, means to demand this right. This is due to judges’ tendency to hold that the arguments presented in this type of process are not sufficient to demonstrate the veracity and/or sufficiency of the beliefs that, according to the objector, impedes him from performing military service.
Draft Legislation
Draft Constitutional Law 022 of 2011 is currently before the First Commission of the House of Representatives. This proposal incorporates several problematic aspects that have surrounded the protection of the right. The draft law seeks to regulate the right to conscientious objection in general, simply by listing the different contexts in which conscientious objection may occur. For example, the draft law mentions the possibility of conscientious objection to educational content, the voluntary interruption of pregnancy, the sale of pharmaceutical products, the exercise of certain functions in the case of civil servants, and of course, to mandatory military service.
Nonetheless, because the draft law strives to establish a blanket regulation, it establishes some elements that the different types of objection have “in common,” in the legislator’s point of view. The law thus fails to respect the particular circumstances of each situation. Under this logic, it is proposed that the authority that decides on the objection be the same one responsible for enforcing the obligation that is being objected to. In the case of military service, the Colombian Army would be responsible for recognizing the right, even though this entity has traditionally denied the existence and undermined the fulfilment of this right.
Furthermore, this draft law fails to establish a clear and adequate procedure for the recognition of the right and its consequences. In addition, the specific elements of each type of objection will be regulated through a Regulatory Decree or another draft law presented by the government, within six months after the promulgation of the general Constitutional Law. This means that Constitutional Draft Law 022 of 2011 does not actually comply with the requirements for the right to conscientious objection to be adequately protected [1].
Voices of the objectors
“Being a conscientious objector is not just refusing perform military service. It is an ethical and political position on the militarization of society. It is the refusal of war, armies and forms of control and domination arising from them. Conscientious objection is a tool in the anti-militarist struggle; its objective is demilitarization. And that is the direction in which the conscientious objectors’ movement has to progress: first, rejecting the mandatory nature of military service; and second, dismantling the Armed Forces as the foundational organization of the State, guardian of security and democracy.
The problem, then, is a pedagogical one, of working to change social attitudes toward violence that sustain forms of control and surveillance including patriarchy, division by classes, racism. The problem with the regulation of conscientious objection is that military service is the guarantor of security, according to militaristic logic, meaning it is required as a means of defence. The problem, therefore, does not question its existence, but rather its mandatory nature; one mandatory act is replaced by another, that of social service. Nevertheless, the act of objecting calls into question that military logic and that is important. Our task, as conscientious objectors, is to bring attention to the problems with militarization and to positions of non-violence within society, as steps toward building a much more just and violence-free society.” [2].
In this regard, Carlos Gaviria [3] asserted in his speech that beyond the regulation of the right to conscientious objection through legislative channels, “We must think about the question, ’why do we need armies?’ Because as long as men are needed to combat, the recruitment process will continue and the obligation to perform military service is intrinsic to the strengthening of the armed forces. Really, what justifies the existence of armies? In a real democracy, armies are unnecessary.”
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