A/HRC/35/4
B.
Right of serving members of the armed forces, including conscripts and
volunteers, to make claims of conscientious objection to military service
12.
The Human Rights Council and, previously, the Commission on Human Rights,
have repeatedly pointed out that persons performing military service may develop
conscientious objections, and affirmed the importance of the availability of information
about the right to conscientious objection to military service, and the means of acquiring
conscientious objector status, for all persons affected by military service. 18 In its resolution
24/17, the Council acknowledged that an increasing number of States recognized
conscientious objection to military service not only for conscripts but also for those serving
voluntarily, and encouraged States to allow applications for conscientious objection prior
to, during and after military service, including reserve duties.
13.
The Special Rapporteur on freedom of religion or belief reiterated in observations on
communications and mission reports that conscientious objection may develop over time,
and even after a person has already participated in military training or activities. 19 Three
special procedure mandate holders sent a joint urgent appeal concerning a conscientious
objector who had left the army without authorization following her decision that she could
no longer participate in the war in Iraq or any other conflict for moral reasons. 20 The
Human Rights Committee had recommended that States parties ensure that the law clearly
stipulates that individuals have the right to conscientious objection to military service,
which they should be able to exercise before the commencement of military service and at
any stage during military service.21
14.
At the level of the European Union, the Advocate General at the Court of Justice
stressed that the manner in which the conscientious objector was recruited was irrelevant,
since the wording “refusal to perform military service” in Council Directive 2004/83/EC22
encompassed anyone in military service, both conscripts and enlisted recruits, and that all
military personnel were covered, including logistical or support personnel. 23 The Court of
Justice ruled in 2015 that it did not appear that the measures incurred by a soldier because
of his refusal to perform military service, such as the imposition of a prison sentence or
discharge from the army, might be considered, having regard to the legitimate exercise, by
that State, of its right to maintain an armed force, so disproportionate or discriminatory as
to amount to acts of persecution; however, it was for the national authorities to ascertain
whether that was indeed the case.24
C.
Selective conscientious objection
15.
In its Guidelines on International Protection No. 10, issued in December 2013, the
Office of the United Nations High Commissioner for Refugees (UNHCR) stressed that the
right to conscientious objection also applied to partial or selective objectors. 25 Such
objectors believe that the use of force is justified in some circumstances but not in others
and that therefore it is necessary to object in those other cases, whereas pacifists object to
all use of armed force or participation in all wars. The General Assembly implicitly
recognized one type of selective objection in its resolution 33/165, in which it called upon
Member States to grant asylum or safe transit to another State to persons compelled to leave
18
19
20
21
22
23
24
25
Council resolution 24/17 and Commission resolutions 1998/77, 1995/83 and 1993/84.
See E/CN.4/2006/5/Add.1, para. 139; A/HRC/19/60/Add.1, para. 56; A/HRC/22/51/Add.1, para. 69.
See A/HRC/23/51, p. 28.
See CCPR/C/KAZ/CO/1, para. 23; CCPR/C/CHL/CO/5, para. 13; CCPR/C/SVK/CO/3, para. 15.
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and
status of third country nationals or stateless persons as refugees or as persons who otherwise need
international protection and the content of the protection granted.
See Shepherd v. Bundesrepublik Deutschland, opinion of Advocate General Sharpston, paras. 32 and
35.
See case C-472/13, Shepherd v. Bundesrepublik Deutschland, judgment of the Second Chamber of 26
February 2015, para. 57.
See paras. 3 and 11 of the Guidelines.
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