A/HRC/23/22
24.
It should be noted that, prior to the decision of the Human Rights Committee in the
case of Yoon and Choi in 2006 and the judgement of the European Court of Human Rights
in Bayatyan v. Armenia in 2011, the Inter-American Commission on Human Rights found
in 2005 in Sahli Vera et al. v. Chile21 that “failure of the Chilean State to recognize
‘conscientious objector’ status in its domestic law, and the failure to recognize [the
petitioners] as ‘conscientious objectors’ … does not constitute an interference with their
right to freedom of conscience”. The Inter-American Commission stated that the
“American Convention does not expressly create or even mention a right of ‘conscientious
objection’”, and found no violation of the applicant’s rights under article 12 of the
Convention providing for freedom of conscience and belief. It is an open question whether
the Inter-American Commission, or the Inter-American Court of Human Rights, would
come to the same conclusion today in the light of the more recent jurisprudence of the
Human Rights Committee and the European Court of Human Rights.
B.
The right of serving members of the armed forces, including conscripts
and volunteers, to make a claim of conscientious objection to military
service
25.
An issue that is also important is whether an individual can make a claim of
conscientious objection after he or she has joined the armed forces. The basis for allowing
such a claim after a person has joined the armed forces is the language of article 18 of the
Covenant on Civil and Political Rights, which provides that an individual has the freedom
“to have or to adopt a religion or belief of his choice”. The Human Rights Committee has
interpreted this language to mean that a person has the right to change his or her religion or
belief.22 In the case of a person subject to conscription, the Committee in its concluding
observations on a State report urged the State “to amend its legislation on conscientious
objection so that any individual who wishes to claim the status of conscientious objector
may do so at any time, either before or after entering the armed forces”.23 The Commission
on Human Rights indicated in its resolution 1993/84 that it was “aware that persons
performing military service may develop conscientious objections”, and affirmed “that
persons performing compulsory military service should not be excluded from the right to
have conscientious objections to military service”.
26.
Although the Human Rights Committee has not addressed the precise issue of a
person who has volunteered to serve in the armed forces and who then subsequently makes
a claim for conscientious objection to military service, the more consistent position would
be that such a claim should be granted if based on a change of religion or belief. It is useful
to note in this regard that, in 2010, the Committee of Ministers of the Council of Europe
adopted a recommendation which states that “professional members of the armed forces
should be able to leave the armed forces for reasons of conscience”.24 The recommendation
indicates that conscripts already integrated in the armed forces should have the right to
make a claim of conscientious objection to military service.25
21
22
23
24
25
8
Report No. 43/05, case 12,129, Merits (10 March 2005).
General comment No. 22, para. 5. The Universal Declaration on Human Rights also provides that
“the right to freedom of thought, conscience and religion … includes freedom to change his religion
or belief” (art. 18).
Concluding observations on the fourth periodic report of Spain, CCPR/C/79/Add 61, paras. 15 and
20.
Recommendation CM/Rec(2010)4 of the Committee of Ministers to member states on human rights
of members of the armed forces, para. 42.
Ibid, paras. 40–46.
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