A/HRC/9/24
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under article 88 (section 1) of the Military Service Act. In both cases, the authors were convicted
as charged and sentenced in separate proceedings to one-and-a-half years of imprisonment. In
both cases, the authors made appeals in separate proceedings from their convictions and
sentences, which were upheld by both the First Criminal Division of the Eastern Seoul District
Court, and then by the Supreme Court. In its decision on the merits, the Human Rights
Committee noted:
article 8, paragraph 3, of the Covenant excludes from the scope of “forced or compulsory
labour”, which is proscribed, “any service of a military character and, in countries where
conscientious objection is recognized, any national service required by law of
conscientious objectors”. It follows that article 8 of the Covenant itself neither recognizes
nor excludes a right of conscientious objection. Thus, the present claim is to be assessed
solely in the light of article 18 of the Covenant, the understanding of which evolves as that
of any other guarantee of the Covenant over time in view of its text and purposes.
3.
The Committee then went on to observe that:
... while the right to manifest one’s religion or belief does not as such imply the right to
refuse all obligations imposed by law, it provides certain protection, consistent with
article 18, paragraph 3, against being forced to act against genuinely-held religious belief.
The Committee also recalls its general view expressed in general comment No. 22 that to
compel a person to use lethal force, although such use would seriously conflict with the
requirements of his conscience or religious beliefs, falls within the ambit of article 18. The
Committee notes, in the instant case, that the authors’ refusal to be drafted for compulsory
service was a direct expression of their religious beliefs, which it is uncontested were
genuinely held.
4.
The Committee also responded to one of the arguments of the State party by stating:
As to the issue of social cohesion and equitability, the Committee considers that respect on
the part of the State for conscientious beliefs and manifestations thereof is itself an
important factor in ensuring cohesive and stable pluralism in society. It likewise observes
that it is in principle possible, and in practice common, to conceive alternatives to
compulsory military service that do not erode the basis of the principle of universal
conscription but tender equivalent social good and make equivalent demands on the
individual, eliminating unfair disparities between those engaged in compulsory military
service and those in alternative service.
5.
A dissenting opinion by Committee member Mrs. Ruth Wedgwood expressed the view
that:
article 18 does not suggest that a person motivated by religious belief has a protected right
to withdraw from the otherwise legitimate requirements of a shared society. For example,
citizens cannot refrain from paying taxes, even when they have conscientious objections to
State activities. In its present interpretation of article 18, seemingly differentiating military
service from other state obligations, the Committee cites no evidence from the Covenant’s
negotiating history to suggest that this was contemplated. The practice of States parties
may also be relevant, whether at the time the Covenant was concluded or even now. But
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