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          • Year: 2003
          • Conscientious Objection As a Fundamental Human Right

          • 23. february 2003. Dejan Milenković, MA Committee of Lawyers for Human Rights

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          I  THE ORIGIN AND DEVELOPEMENT

          Conscientious objection is a relatively new institute in the international law and national legislatures. As a difference from the previous time, when conscientious objection was thought to be a religious right exclusively, today it has the character of a fundamental human right, established, among other things, by a number of international documents such as the documents that followed the 51st session of the United Nation Commission for Human Rights which guarantee that "... everybody has the right to refuse the military service, according to the recognized right to freedom of thought, conscience, and religion, as declared by the Article 18 of the Universal Declaration of Human Rights and the Article 18 of the International Treaty of Civil and Political Rights"[1] The ideological basis of the conscientious objection is the idea to refuse taking part in killing other people. Speaking about the content of term, to have conscientious objection usually means to refuse military service.2 In modern times, having in mind the formal legal way of exercising this right which is based on the international documents and comparative law, conscientious objection is most often defined as the right of citizens to substitute their military obligation by alternative service in civil institutions.

          Historical roots of conscientious objection today are connected with European religious communities, particularly with Protestant movements in the Netherlands and England in 16th and 17th century. For example, in England in 1660, the Quakers publicly announced to the English king Charles II that they do not want to take part in wars and other armed conflicts in the name of Christ or in the name of any kingdom in the earth. Few people know that even Napoleon allowed Protestant Anabaptists in France to be excused from military service. Due to these circumstances, conscientious objection was first established as a legal institute in Scandinavian countries with Protestant tradition at the beginning of the 20th century (Norway 1900, Denmark 1917, Sweden 1920, Finland 1931), in Great Britain (1916) and the Netherlands (1922).

          As time passed, conscientious objection had more and more reasons. Beside religious reasons, citizens used to refuse - more and more often - to participate in wars and killing other people for many other reasons (ethical, moral, philosophical, political and above all, pacifistic ones) so conscientious reason ceased to be religious right exclusively and gained, more and more, the character of a fundamental human right. It was particularly prevalent after the Second World War, when after more than fifty years, conscientious objection was recognized in the countries with Roman Catholic tradition, especially France (1963), Belgium (1965), Italy (1972), Austria (1974), Portugal (1976), Spain (1978)…, and when the first international documents that generally regulated this right were adopted. On the other side, conscientious objection was not legally permitted in the countries behind "the Iron Curtain" in the time of communist regimes, except in two cases connected with the Soviet Union and the Democratic Republic of Germany.3 After the fall of communism, this right has spread and is now recognized in most of European countries in transition. Conscientious objection is today recognised in dozens countries, in all continents, with the tendency of further spreading.

           

          II INTERNATIONAL DOCUMENTS AND COMPARATIVE EXPERIENCE

          The first international institution that took an articulated and concrete political and legal opinion related to conscientious objection was the Council of Europe. So the Resolution of the Parliamentary Assembly of the Council of Europe No. 337, adopted in 1967, defines the basic principles of the legal regulations of conscientious objection. According to this Resolution, the persons who are obligated to military service and who refuse to serve with arms due to conscientious objection or some other honest religious, ethical, moral, humanitarian, philosophic or other similar reasons, have the right to be released from such a service, according to the recognized right to freedom of thought, conscience, and religion.4 The Resolution 337 was then confirmed several times and broadened by the Recommendations 476 (1967) and 816 (1977) of Parliamentary Assembly of the Council of Europe, as well as the Recommendation R (87) 8 about conscientious objection to military service adopted by the Committee of Ministers of the Council of Europe.5

          Among the first documents by which conscientious objection was recognized as a fundamental human right, brought by the United Nations at the end of 80s and at the beginning of 90s, was the Resolution "The role of the youth in improving and protection of human right, conscientious objection to military service included", adopted by the UN Commission for Human Rights in 1993, as well as the mentioned documents that followed the 51st session of the Commission for Human Rights in 1995. The basic principles, according to these international documents, are:

          1. that the civil service is not equalled with military service without arms, in military units;

          2. that conscientious objectors’ requests are decided on by the bodies independent of the army; 

          3. that an appeal can be lodged against the first administrative body’s decision;

          4. that there is a possibility of administrative procedure before the court in charge, in case the effective decision of the second administrative body does not permit civil service at a conscript’s request;

          5. that the request and the beginning of the court procedure delay the start of the military service;

          6. that the possibility for conscientious objection is not allowed only for the conscripts but for persons already serving or the reserve, also;

          7. that a person subject to military conscription shall be informed about his right to conscientious objection in time and

          8. that civil service must not have the character of a punishment and therefore the period of time for civil service shall be equalled or reasonably longer than the military service.

          In most European countries, conscientious objection is a constitutionally granted citizens’ right while the way it is regulated is in accordance with the principles given by the cited documents.

           

          III  CONSCIENTIOUS OBJECTION IN YUGOSLAVIA

          Former Yugoslav country (1945-1991), although it signed numerous international declarations and conventions on human rights, did not recognized or mentioned conscientious objection in law and practice. According to previously effective Yugoslav law, any refusal to take and use arms, as well as avoiding military service, were under strict criminal sanctions. Therefore, a special chapter of the Criminal Code (CC) adopted in 1976 (with numerous further amendments and additions) specifically lists so called crimes against armed forces, among which these two are the most characteristic: the crime of "refusal to take and use arms", punished by the prison penalty (Art. 202, CC) and the crime of "not answering the conscription call and avoiding military service", punished by the fine or the prison penalty (Art. 214, CC)6. Due to these circumstances, particularly having in mind that according to the effective laws of the Yugoslav country in that time conscientious objection was not recognized even for the religious reasons, the members of certain religious communities in Yugoslavia (for example, Jehovah’s Witnesses and Nazarenes) were often sent to prison because they refused to take arms and serve the military service. Sometimes, even the same person was prosecuted and punished several times for the same crime (for example, for refusal to take and carry arms) which had severe prison punishments as results.

          In the FRY, conscientious objection was established as a legal category by the Constitution adopted in April 1992. According to the part of the Article 137. of the federal Constitution: "the citizen who due to religious or other reasons does not want to fulfil his military obligation with arms, shall be enabled to serve his military duty in the Army of Yugoslavia without arms or in civil service, in accordance with the federal law". Starting from this regulation, it can be concluded that the federal Constitution identifies conscientious objection on the normative level, but does not recognize it in its essence as a fundamental human right as it was set by European and world standards. This conclusion can be drawn knowing that conscientious objection is regulated by the part of the federal Constitution dealing with the Army of Yugoslavia (Art. 137) and as the way of fulfilling the military obligation and not in the part dealing with rights and freedoms. The very manner of regulating this issue by the federal Constitution leads us to the conclusion that conscientious objection does not have the role and importance in the federal Constitution which it should have as a fundamental human right. According to Art. 137, p. 2 of the Constitution, all questions related to conscientious objection, particularly related to the procedure of exercising this right, are to be regulated by the related federal law.

          The federal law which is referred by the federal Constitution is the Army of Yugoslavia Act, passed in May 1994.7 The institute of conscientious objection, as mentioned in the Art. 137, p. 2 of the Constitution, was regulated more precisely by the parts of the Articles 296 to 300 of the federal Army of Yugoslavia Act. These regulations have been changed and amended several times since 1994.8 According to the effective regulations, the conscript who does not want to serve military service with arms or wants to fulfil his duty in civil service serves 13 months (Art. 296, p. 2). According to the Art. 297. of this Act, civil service of military duty is performed in the units and institutions of the Army and the Federal Ministry of Defence (Art. 297, p.1). According to the Art. 298. of this Act, the conscript who does not want to serve his military duty with arms must make a written request to army territorial department within 15 days after receiving a conscription call, listing the reasons for conscientious objection and the jobs he wants to perform in the army or civil service, while fulfilling the military duty. According to the Art. 299. of the Army of Yugoslavia Act, the conscription commission in charge must decide on this request within 60 days (Art. 299, p. 1). The commission may consult social workers, pedagogues, the representatives of religious communities and similar experts (Art. 299, p.2). According to the Article 300. of this Act, an appeal against the commission’s decision can be lodged within 15 days after receiving the decision (Art. 300, p. 1). The superior army territorial department decides on the appeal (Art. 300, p. 2). This decision is final and there is no possibility for administrative procedure (Art. 300, p. 3). After the analysis of the articles of the Army of Yugoslavia Act which regulate the exercise of the constitutional right to conscientious objection, the conclusion is that conscientious objection is not guaranteed as the right recognized by the cited basic principles of quoted international documents. Following circumstances, among other things, lead to such a conclusion:

          1. Alternative civil service does not exist. Alternative service is always separated from the units and institutions of the Army but it is not so in our law, according to the articles listed above. The lawmaker uses the expression "civil service of the military duty" on purpose because it means the military service without arms in military units. Therefore, even today, none of the conscripts has ever served civil service in our country.

          2. The Army of Yugoslavia Act stipulates the conscientious objectors must make a written request within 15 days after receiving a conscription call. The term is preclusive because the conscript who oversteps this deadline loses the right to conscientious objection. Besides, if the request is not adopted, it cannot be made anymore.

          3. Those who started their serving military service, as well as the reserve, are deprived of this right. Even the Constitutional Court has once decided that the persons who are serving military service, as well as the reserve, have no right to conscientious objection.9

          4. The conscientious objectors’ requests are decided on by army territorial departments, both on the first and on the second level.

          5. Finally, the Army of Yugoslavia Act stipulates the decision brought upon the appeal is final and there is no possibility for administrative procedure. Excluding the administrative procedure related to conscientious objection by the Army of Yugoslavia Act, the judicial protection guaranteed by the Constitution is practically excluded, in fact because conscientious objection is not referred to as a human right by the very Constitution.

           

          IV THE PERSPECTIVES OF EXERCISING CONSCIENTIOUS OBJECTION IN OUR LAW

          According to what has been said, the general conclusion is that constitutional and legal regulations of conscientious objection, set by the Army of Yugoslavia Act, are not in accordance with conscientious objection as a fundamental human right guaranteed by the international documents. Speaking about the process side, the procedure of exercising conscientious objection is significantly different from the basic principles and the spirit of international law.

          In the middle of 2001, the Yugoslav Committee of Lawyers for Human Rights submitted the Amendments to the Army of Yugoslavia Act, for the part related to the length of military service and recognizing the right to conscientious objection. The Amendments were signed by more than 30 000 Yugoslav citizens. The members of Yugoslav Parliament have not discussed the Amendments yet although it is still in the parliamentary procedure. This initiative was supported several times by the Council of Europe and European Bureau for Conscientious Objection.10 The creators of the Constitutional Charter have also shown the lack of knowledge about the international documents relating to recognizing and exercising the right to conscientious objection. Namely, the Draft Constitutional Charter guarantees this right to the conscripts and not - as it should be according to the international documents - to all persons subject to military conscription, which makes those already in service, as well as the reserve, de facto deprived of this right.

          The Recommendation of the Council of Europe on the obligations the Federal Republic of Yugoslavia should fulfil in order to be received in the Council of Europe in the chapter 3 on Human Rights, the FRY is requested to apply the regulations related to conscientious objection and pass the Law on Alternative Service within three years. During the round table organised by the Centre for Peace and Antiwar Action and the Centre for Civil-Military Relations, held in the middle of December 2002, the representatives of the AY declaratively shown their will for having conscientious objection regulated in accordance with the European standards. There are good prospects that 2003 is the year when conscientious objection will finally get the character of a fundamental human right in the new state union of Serbia and Montenegro, thanks to the pressure of the wish to join the Council of Europe and harmonising local standards with the standards of the Council of Europe, thanks to the pressure of some non-governmental organisations and thanks to better understanding of this problem shown by the representatives of the Army themselves.


           

          [1] United Nations Economic and Social Council, Commission on Human Rights,51st Session, March 1995.

          2 However, there are other forms of conscientious objection which are less known since they are not so strictly legally regulated. Therefore, conscientious objection also refers to the situations in which persons work in companies producing or distributing the products aimed for war or harmful for the environment; it refers to doctors who refuse to conduct an abortion etc

          3 Compare: Stevan Lilić, Biljana Kovačević-Vučo, Conscientious Objection, Yugoslav Committee of Lawyers for Human Right, Belgrade 2000, p. 14

          4 Compare: Resolution 337 (1967) of Parliamentary Assembly of the Council of Europe, Article 1

          5 Translations of the cited documents of the Council of Europe can be found in: Stevan Lilić, Biljana Kovačević- Vučo, Conscientious Objection, Yugoslav Committee of Lawyers for Human Right, Belgrade 2000 

          6 The crimes regulated by the articles 202. and 214. were not changed in the Criminal Code of the FRY.

          7 The Army of Yugoslavia Act, Official Gazette of the FRY, No. 43/94.

          8 Compare: The Law of changes and amendments of the Army of Yugoslavia Act, Official Gazette of the FRY, No. 44/99; The Law of changes and amendments of the Army of Yugoslavia Act, Official Gazette of the FRY, No. 3/2002 

          9 "(...) The articles of the Army of Yugoslavia Act, stipulating the conscript has the right not to serve the military service with arms, due to the religious or other conscientious objection, i. e. to serve the military duty in civil service, and this right to "conscientious objection" is not stipulated for the reserve of the AY,  are not discordant to the Constitution of the Federal Republic of Yugoslavia". Yugoslav Constitutional Court, Decision IU No 51/94, brought on May 25th 1994

          10 The Amendments to the Army of Yugoslavia Law, proposed by YUCOM can be found in the publication: Stevan Lilić, Biljana Kovačević Vučo, Conscientious Objection, second edition, Yugoslav Committee of Lawyers for Human Rights, Belgrade 2001

        • Tags: Conscientious Objection, human rights, Law, right, army, military, origin, international law, United nations, civil service, Yugoslavia, recruit, FRY
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