International law and conscientious objection: what does it say?

There are two points to this.

One is how the right has been established through international agreements and jurisprudence.

The second is how the standards have been developed at international level within this framework. It’s worth noting that states’ early conscientious objection to military service legislation was actually a pragmatic response to the difficulty created by people who were not prepared to fight—particularly in times of conscription in world wars—and what exactly you did about them. It was a question of what we did with these people, rather than a question of rights.

• The concept of conscientious objection as a right has subsequently derived from Article 18 of the Universal Declaration of Human Rights, which was passed by the United Nations in 1948. That article states that everyone has the right to freedom of thought, conscience and religion.
• There was a reference to the right of conscientious objection to military service in the post-war German Constitution, adopted in 1949. This was not specifically mentioned in the Universal Declaration, nor in the International Covenant on Civil and Political Rights, which in the mid-1960s turned the principles of the Universal Declaration into a binding treaty. That reflects the fact that there were very few countries that had brought in legislation allowing conscientious objectors to be exempted from military service at that time.

  

• The first authoritative interpretation of the right of freedom of thought, conscience and belief as including conscientious objection to military service came in the General Comment Number 22, which was passed as recently as 1993 by the Human Rights Committee. For its supervision, it was set up within the International Covenant. In the article’s General Comment, the Committee said that it believed that a right of conscientious objection to military service, could be derived from Article 18, in that the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one’s religion or beliefs.
• There was no persuasive force in place in international law until 2006, when the Human Rights Committee decided on an individual case regarding two Jehovah’s Witnesses from South Korea, who had served 18-months prison sentences. It found that under Article 18 of the International Covenant, South Korea, or any state, was obliged to take into account genuine conscientious objections to participation in military service. The committee firmed up this jurisprudence in March 2010.
• The elaboration of standards has very largely taken place within the former Commission on Human Rights in the United Nations, which has been replaced by the Human Rights Council, and their resolution in 1998, Resolution 1998-77. It incorporates almost all of the significant items of international standards reached by the UN Commission.
• The elaboration of standards has also been followed up by the expert Working Group on Arbitrary Detention, which reported to the Commission and now reports to the Human Rights Council, and by specific findings of the Human Rights Committee, when dealing with reports from individual states, and also in some other acts of its individual jurisprudence.

Derek Brett is director of Conscience and Peace Tax International (CPTI), a non-governmental organisation in special consultative status with the Economic and Social Council (ECOSOC) of the United Nations.