Article 9 of the European Convention on Human Rights (ECHR) refers
to the right to freedom of thought, conscience and religion, and to manifest
that religion or belief. Conscientious objection (CO) in the armed forces is
not explicitly mentioned as a right under Article 9 ECHR, nonetheless the Court
will consider whether the objector’s motives for refusing to perform military
service was due to his conscience or his genuine religious or other beliefs and
whether this would constitute a conviction or not. This will depend on the
circumstances of the case before the Court.[1]
Religion can be defined as 'the belief in and worship of a
superhuman controlling power, especially a personal God or Gods', and conscience
is ‘a person’s moral sense of right and wrong, viewed as acting as a guide to
one’s behaviour’.[2]
Therefore CO can be seen as a broad concept which relates to Article 9 ECHR. To
support this point, a wide definition of CO in the armed forces is something
that ‘arises when a serving or prospective member of the armed forces finds
that their work cannot or could not be done in good conscience’,[3]
be it for religious, moral, philosophical, or political reasons[4].
Although there is a negative obligation imposed on the State to not
interfere with the rights under Article 9(1) ECHR, there are limitations for
freedom to manifest one’s religion or belief[5] which
are necessary in a democratic society in the interests of public safety,
protection of public order, health or morals, or for the protection of the rights
and freedoms of others. This means that Article 9 is a qualified right and that
the State can, in this particular case, refuse to grant CO to the applicant
provided that the limitations are prescribed by law (principle of legality).
A case example to consider is Kokkinakis,[6]
where it was held that the sentence given to the defendant would amount to
a breach of Article 9 ECHR so as to exercise his ‘freedom to manifest [his]
religion or belief’, unless it is ‘prescribed by law’, necessary in a democratic
society, and it has a legitimate aim.[7] In
this case, the Court held that there was an interference with the defendant’s
right because it was found that the contested measure was not proportionate to
the legitimate aim, neither was it necessary in a democratic society…for the
protection of the rights and freedoms of others,[8] thus
a breach of Article 9 ECHR.
The United Kingdom (UK) has recognised the concept of CO since 1757[9],
where a British law allowed exemption from compulsory militia service. In the early
nineteenth century, Napoleon granted exemption to Protestant Anabaptists.[10] The
idea of CO was reinforced through the creation of the Military Service Act 1916,
where conscription was imposed to all single men aged between eighteen and
forty-one years old during World War One, but nevertheless there were
exceptions which included conscientious objectors. Also, the National Service
(Armed Forces) Act 1939 was enacted once the Second World War had commenced,
which also recognised conscientious objectors.[11] However
it was only in 2011 when the European Court of Human Rights (ECtHR) had
recognised the right to CO as a manifestation of freedom of thought, conscience
and religion.[12]
The ECHR was made effective in 1951, yet at this time it had no
binding effect on the UK because the ECHR was, and is not directly applicable,
meaning that in order for the Convention to be effective in the UK an Act of
Parliament would be required, which meant the creation of the Human Rights Act
1998 (HRA). However, it must be noted that it is not the creation of the Act
alone which makes the Convention effective, but that it is section 2, which
mentions that national courts or tribunals should take into account judgements,
opinions and decisions made in ECtHR, and section 3(1) which expresses that ‘so
far as it is possible to do so [all legislation] must be read and given effect
in a way which is compatible with the Convention rights’. If this cannot be
done, and the national legislation cannot be seen as compatible with the ECHR, then
section 4 will apply, which is the making of a declaration of incompatibility. Consequently,
national laws should be made compatible with Article 9 of the ECHR so as to
maintain the right to freedom of thought, conscience and religion, and if the right
to CO is considered to be under Article 9 ECHR then the States are under an
obligation to not violate one’s manifestation of freedom of religion and
conscience by refusing to grant to request of the applicant unless of course
the limitations are ones set under Article 9(2).
Further, section 6 HRA refers to acts of public authority, and
claims that public authority’ can include a court or tribunal, or any person
with functions of a public nature. It can be inferred that the Ministry of
Defence, who manage the armed forces, is one of public authority, as there
functions are functions of a public nature[13]
and therefore they are entitled to act compatibly with the ECHR as section 6(1)
points out that ‘it is unlawful for a public authority to act in a way which in
incompatible with a Convention right’.
There are various principles which are to be contemplated by the
State. Firstly, there is the principle of legality which means that in order
for a citizen to be punished, the offence must be ‘prescribed by law’. In Sunday
Times[14]
it was established that the law must be adequately accessible; the citizen must
be aware of the legal rules and secondly, it must be foreseeable to the citizen
so that he can regulate his conduct. In a CO context, in order for someone to
be punished due to an objection to military service there must be a law clearly
stating when they will be punished.
Also, positive and negative obligations are imposed on the State.
Positive obligations mean that states can be obliged to act and to take active
steps to ensure an effective enjoyment of the rights protected by the
Convention,[15]
such as ‘everyone has the right to freedom of thought, conscience and religion’
and by individuals having this right it means that they should be able to gain
access to CO as it is something which is considered as a manifestation of
religion, thought and conscience under Article 9 ECHR. Whereas negative
obligations are those that prevent the State from violating a specific right
through conduct, in this case the State should not interfere with the right to
manifestation of religion and thus it would be made easier to access CO.
The principle of proportionality may arise in cases where it is
necessary to obtain a fair balance between common good and individual rights (for
example, failing to strike a ‘fair balance’ by considering the employer’s
concerns about the corporate image more than the employee’s interest in expressing
her religious convictions[16]).
Despite the fact that CO is argued to be a right under Article 9, there
has been a conflict in interests of the individual and the State when referring
to CO.[17]
Previously, the European Commission of Human Rights showed reluctance to
recognise CO as a right under Article 9 ECHR, one reason being that Article 9
was read in conjunction with Article 4(3)(b) ECHR.[18] Article
4(3)(b) says that any service of a military character or conscientious
objectors in countries where they are recognised are not included in the term
‘forced or compulsory labour’. This implies that the States are not obliged to
recognise CO as a right[19],
and it has not been seen as a right under Article 9 ECHR.[20]
Furthermore, it has been suggested that CO in the military context
is a fundamental part of an individual’s relationship with the State…when
conscientious objectors refuse to perform such a duty; they experience a
conflict in their relationship… [There is] a conflict between the beliefs of
the objector and the duties laid down in positive law…thus the objector
consciously avoids performing an obligation in the name of a superior command.[21]
Nonetheless, there have been changes on the view of CO, and depending on the
circumstance of the case before the Court, the right to CO can be recognised
and this was illustrated in Bayatyan v Armenia[22]
where it was held that a CO status could be claimed if it is proved that
the complainant’s refusal was motivated by his religious beliefs which amounted
to a serious and insurmountable conflict with his obligation to perform
military service. Article 9 ECHR applied and it was no longer necessary to read
it in conjunction with Article 4(3)(b) ECHR because most member States with
conscription had laws recognising the right to CO. The Court went on further to
say that because there was no alternative service available in Armenia, there
was a failure to balance the interests of the society as a whole and the
interests of the complainant, meaning that this failure was not proportionate,
and they could not justify with the interference of the person’s right to
freedom of religion by saying that the limitation was prescribed by law, there
was a legitimate aim, and it was necessary in a democratic society which
therefore meant a breach of the Article. This case was followed in Savda v
Turkey[23]
and in Erçep v Turkey,[24]
the latter holding that the numerous convictions on the objector amounted
to a violation of Article 9 ECHR because there were conscription laws and no
alternative civilian service available.
These cases imply that the right to CO must be recognised and there
has to be an option of an alternative to military service as is already done by
most Member States, otherwise it will be seen as disproportionate and not
necessary in a democratic society. In spite of an applicant having exemption
from performing military service, it may not for a substitute civilian service,
which was shown in Grandrath,[25]
and the State can take measures to enforce the civilian service without
breaching Article 9 ECHR,[26] even if it insists on maintaining a longer
period of civilian service than for military conscription.[27]
Although this establishes the Court considering CO more seriously,
the cases alone do not show a binding effect on the UK, instead it is section 2
HRA. Consequently, this means that the UK national courts should consider the
circumstances of the case before them so as to make a judgment of whether the
State can interfere with the objector’s rights under Article 9 because of the
limitations under Article 9(2), or not. Also, if the courts recognise the right
to CO in a military context, they can impose an alternative civilian service in
which the objector will most probably be required to perform. Lyons[28] illustrates
consideration of the Strasbourg judgements, the defendant in this case appealed
against his conviction for disobeying a lawful order[29]
by arguing that his rights under Article 9 ECHR were violated and that he
should not have to perform his duty until the appeal was determined, thus he
thought of it as unlawful. Additionally, he argued that he also had protection
under the Geneva Conventions 1949. However, this argument was rejected as it
was held that the applicant was still a member of the forces and was subject to
military discipline.[30] The
Bayatyan[31]
case was considered and it was argued that the defendant’s refusal was due to
his conscience which amounted to a serious and insurmountable conflict with his
obligation;[32]
nevertheless the court believed that the defendant being a volunteer was a
material fact,[33]
and consequently the appeal was dismissed. This therefore shows the courts
considering all interests because if one or more members could suddenly refuse
in a dangerous situation then this would entail potentially grave consequences,[34] which
would not be in the public interest and thus Article 9(2) was referred to.
Moreover, it can be indicated that the national courts acknowledge
the different reasons for CO, meaning that Article 9 ECHR may be violated for
both religious and non-religious reasons if the applicant is refused the right
to CO. An example is pacifism, as it was held in Arrowsmith v UK[35]
that ‘pacifism
as a philosophy...falls within the ambit of the right to freedom of thought and
conscience…it may therefore be seen as a belief protected by art 9(1)’, hence
making the access to CO seem more fair and easy. In contrast, it has been
claimed that the right to CO is not set out clearly in legislation relating to
the armed forces. In fact, CO is only mentioned in the Queen's Regulations for the Royal Navy, however it only mentions the procedure to register for CO.[36],
it is not mentioned in the terms of service, and many people are not aware of it.[37]
In addition, CO is something which is difficult to access for procedural
reasons,[38]
as a result successful applications have been rare; six out of nine being
successful between 2001 and 2010.[39] This
may imply that the State’s interest can override those of the objector, and if
so then it may actually be seen as a violation to Article 9 ECHR, which should
not be the case because it has a binding effect, thus CO must be made easier to
access and this means letting people know, and explaining the meaning of the
term. By doing this the limitations to the right to CO can be set out clearly
in legislation, thereby making it more accessible and foreseeable so as to
benefit the members of the armed forces because they will know more or less
when they can be granted the right to CO if they intend to apply for it.
To
conclude, it seems that CO has recently become a recognised right under Article
9, although it had been recognised by the UK through the establishment of the
Militia Act 1757. Nevertheless, the recognition of this right by the ECtHR in
the case of Bayatyan suggests a more binding effect on all Member States
so that they will have to consider the circumstances of the case before them
and whether there was a serious and insurmountable conflict with an obligation
to perform military service. The reason for this binding effect on the UK is
because of the creation of the HRA 1998 which confirms that the UK courts are
required to consider and follow the decisions of the Strasbourg Court, and it
also requires, in this case, the Ministry of Defence to act compatibly with
Article 9, and thus Article 9 cannot be breached, meaning that they cannot
refuse to grant CO unless it can be justified. This shows a negative obligation
on the State to not interfere with the right under Article 9(1), however
Article 9 is a qualified right and it is subject to limitations set out under
Article 9(2). Nonetheless, this right is
not set out clearly in legislation and this must be rectified as it shows an
indirect interference with the Article 9 rights because some members of the
armed forces may not be aware of this right and so State interest prevails.
[1] European
Court of Human Rights, ‘Factsheet - Conscientious objection’ (Press Unit,
August 2013) http://www.echr.coe.int/Documents/FS_Conscientious_objection_ENG.pdf accessed
29 March 2014
[2] Oxford
Dictionary, ‘Oxford Dictionaries: Language Matters’ (OUP, 2014) http://www.oxforddictionaries.com/definition/english/conscience?q=conscience accessed
30 March 2014
[3] David Gee,
‘Informed Choice? Armed forces recruitment practice in the United Kingdom’ http://www.informedchoice.org.uk/informedchoice/informedchoiceweb.pdf accessed
29 March 2014
[4] Ӧzgür
Heval Çinar, Conscientious Objection to Military Service in International
Human Rights Law (1st edn, Palgrave Macmillan 2013); Matthew
Lipman, ‘The Recognition of Conscientious Objection to Military Service as an
International Human Right’ (1990) 21(1) Cal W Int'l LJ 31
[5] James
Richardson, Archbold Criminal Pleading Evidence and Practice 2014 (62nd
end, Sweet & Maxwell 2013)
[6] Kokkinakis
v Greece (1994) 17 EHRR 397
[7] Ibid, at
para 36
[8] Kokkinakis
(n
6), at para 49
[9] Militia
Act 1757
[10] Sam
Biesemans, ‘Conscientious Objection: History of conscientious objection in
Europe’ (A Peace Pledge Union Project) http://www.ppu.org.uk/learn/infodocs/cos/st_co_eurohistory.html accessed
29 March 2014
[11] Tony
Ruhl, ‘National Service – History’ (British Armed Forces and National
Service, 2002) http://www.britisharmedforces.org/ns/nat_history.htm accessed
29 March 2014
[12] ‘Conscientious
objection to military service – can international human rights systems help?’ (A
Conscientious Objector’s Guide to the International Human Rights System) http://co-guide.org/conscientious-objection-military-service-%E2%80%93-can-international-human-rights-systems-help accessed
29 March 2014
[13]
Human Rights Act 1998, s 6(3)(b)
[14] Sunday
Times v UK (App no 6538/74) (1979) 2 EHRR 245 at para 49
[15] ‘The
European Convention on Human Rights (ECHR) – Introduction’ (ECHR Online,
2008) http://echr-online.com/#ECHR
introduction - positive obligations accessed 30 March 2014
[16] Eweida
and others v UK (App nos 48420/10, 59842/10, 51671/10 and 36516/10) (ECtHR,
27 May 2013)
[17] David
Harris, Michael O’Boyle, Ed Bates and Carla Buckley, Harris, O’Boyle &
Warbrick: Law of the European Convention on Human Rights (2nd
edn, OUP 2009)
[18]
See GZ v Austria (App no 5591/72) (Commission decision of 2 April 1973);
Grandrath v Germany (App no 2299/64) (1966) 10 YB 626
[19] GZ
v Austria (n 18)
[20] Conscientious
Objectors v Denmark (App no 7565/76) (1978) 9 DR 117
[21] Çinar
(n 4); see also Charles Moskos and John Whiteclay, The New Conscientious
Objection: From Sacred to Secular Resistance (1st edn, OUP USA
1993)
[22]
(App no 23459/03) (ECtHR, 7 July 2011)
[23]
(App no 42730/05) (2012) ECHR 250
[24]
(App no 43965/04) (2011) ECHR 254
[25] Grandrath
(n 18)
[26] Johansen
v Norway (App no 10600/83) (1985) 44 DR 155
[27] Autio
v Finland (App no 17086/90) (1991) 72 DR 245
[28] R
v Lyons [2011] EWCA Crim 2808; [2012] 1 WLR 2702
[29]
Armed Forces Act 2006, s 12(1)(a)
[30]
See also ForcesWatch, ‘Conscientious Objection in the UK Armed Forces’ (ForcesWatch
Briefing, 2011) http://forceswatch.net/sites/default/files/ForcesWatch_briefing_conscientious_objection.pdf
accessed 6 April 2014
[31] Bayatyan
(n 22)
[32]
Lyons (n 28) at paras 27-28
[33] Ibid,
at paras 28-31
[34] James
Wilson and Guy Skelton, ‘A Modern-Day “Conchie”’
(2012) 176(10) CL&J 135
[35] Arrowsmith
v United Kingdom (App no 7050/75) (1978) 19 DR 5
[36] For
example, the Armed Forces Act 2006 and the Armed Forces Act 2011; ForcesWatch (n 30)
[37] ForcesWatch
(n 30)
[38] ‘United
Kingdom of Great Britain and Northern Ireland: Human Rights and the Armed
Forces’ (War Resisters’ International, 1 October 2007) http://wri-irg.org/news/2007/uk2007-unreport-en.htm
accessed 6 April 2014
[39] ForcesWatch
(n 30); see also Sam Marsden, ‘Conscientious Objectors Figures Revealed’ (The
Independent, 30 January 2011) http://www.independent.co.uk/news/uk/home-news/conscientious-objectors-figures-revealed-2198647.html
accessed 6 April 2014
