Although human rights systems will not provide solutions to all problems related with conscientious objection to military service, they can be of help in certain situations. However, it is important to be realistic, and not to expect that human rights – and international human rights systems – can solve the social and political problems of war and militarism.
There are many motivations for conscientious objection to military service. Most conscientious objectors strive for a society free of war and militarism. The vast majority of conscientious objectors do not only want to be exempted from military service, but see their conscientious objection in the context of a social and political struggle against war and militarism, and for a more just and peaceful society. The use of human rights systems can never be a substitute for this necessary struggle – but it can add a different dimension, it can help to protect conscientious objectors to military service, and it can contribute to the legal recognition of the right to conscientious objection to military service.
When using human rights systems, it is important to be aware of their limitations, of what they can achieve and what not. Bearing this in mind, international and regional human rights system can be an important tool for conscientious objectors to military service and their movements, and for NGOs supporting conscientious objectors.
The different international and regional human rights systems play a role in monitoring State practice of human rights, including the right to conscientious objection. This role can be beneficial for the lobbying of national governments and authorities, and to argue cases in national courts, up to the national Constitutional or Supreme Court.
This guide describes the way how you can use the different human rights systems, and which system might be the most promising one to use, when the right to conscientious objection has not been recognised or has been implemented in an unfair manner.
Although the right to conscientious objection is not explicitly mentioned in any of the key human rights treaties (with the exception of the European Charter of Fundamental Rights) – globally (the United Nations) or regionally – it has often been recognised as a right.
The United Nations system has recognised conscientious objection as an inherent part of the right to freedom of thought, conscience and religion, and the different parts of the United Nations system – especially the Human Rights Council building on the work of the former Human Rights Commission, and the Human Rights Committee through its Concluding Observations and Views on individual cases have developed a set of standards in relation to the right to conscientious objection to military service, which can be used to lobby national authorities and to argue in national courts.
Especially the Council of Europe took up the right to conscientious objection quite early – well before any other system – with its Recommendation 478 (1967) from 26 January 1967. However, in the end it lagged behind the UN system, and only in 2011 did the European Court of Human Rights recognise the right to conscientious objection as a manifestation of freedom of thought, conscience and religion.
The Inter-American human rights system is presently less advanced. Although the American Convention on Human Rights also recognises the right to freedom of thought, conscience and religion, the Inter-American Human Rights Commission has so far not explicitly recognised the right to conscientious objection as protected under this provision. In fact, the jurisprudence of the Inter-American Human Rights Commission has so far been disappointing.
The different African human rights systems – be it the African Commission on Human and Peoples' Rights or the ECOWAS Community Court of Justice, or any other – have so for not dealt with the question of conscientious objection to military service. While article 8 of the African Charter on Human and Peoples' Rights also protects the right to freedom of conscience – and analogous to the similar provisions in the International Covenant, the European Convention, or the American Convention should therefore also include the right to conscientious objection to military service – this has so far not been tested.
Even though the different human rights systems are formally independent, they nevertheless do relate to each other. Advances in one system – e.g. the United Nations system – can be used to advance another system, and this is important when choosing which mechanism to use. Each of the many different mechanisms has its advantages and disadvantages, and might be more or less advanced on the concrete issue in question, and this can make the choice of mechanism more complicated. Hopefully, this guide will help to make the choice easier by giving a comprehensive overview.
Finally a word of warning: although many human rights mechanisms might be judicial or quasi-judicial mechanisms – others are clearly political, such as the United Nations Human Rights Council – they do not necessarily in a political vacuum. Just have the “right” legal arguments might not always be sufficient to win a case, especially when it comes to overturning existing jurisprudence, setting a new precedent or developing new human rights standards. It is therefore important to “play” the different human rights systems intelligently, and to get in touch with the organisations listed here (or use the contact form) if you want to engage in changing jurisprudence or standards setting. Trial and error might be a nice tactic in many areas of daily life, but not when it comes to human rights, as negative jurisprudence can make progress more difficult for others for decades to come.
To conclude, while the different human rights mechanisms presented in this guide will not bring about a demilitarised world - that's well beyond their mandate – they can make the lives of conscientious objectors safer and easier, and this is a worthwhile goal in itself. It can then free up energy and resources for the social and political struggle and war and militarisms, and for a more peaceful and just world.