European Court of Human Rights catching up with UN Human Rights Committee
On 7 July 2011, the Grand Chamber of the European Court of Human Rights finally recognised the right to conscientious objection as a right protected under article 9 of the European Convention on Human Rights. In its judgement in the case of Bayatyan v. Armenia (Application no. 23459/03, 1/6/2011), the court has ruled that states have a duty to respect individuals’ right to conscientious objection to military service as part of their obligation to respect the right to freedom of thought, conscience and religion set out in Article 9 of the European Convention on Human Rights.
This is the first time that the right of conscientious objection to military service has been explicitly recognised under the European Convention on Human Rights.
Following a decision of a chamber of the European Court of Human Rights from October 2009, War Resisters' International, the Quaker United Nations Office Geneva, Conscience and Peace Tax International, Amnesty International, and the International Commission of Jurists got permission to submit a third party intervention in the appeal of the case to the Courts Grand Chamber.
In its judgement, the Grand Chamber finally overturns the jurisprudence of the former European Commission on Human Rights. The Court states in the judgement:
"99. The Court notes that prior to this case it has never ruled on the question of the applicability of Article 9 to conscientious objectors, unlike the Commission, which refused to apply that Article to such persons. In doing so, the Commission drew a link between Article 9 and Article 4 § 3 (b) of the Convention, finding that the latter left the choice of recognising a right to conscientious objection to the Contracting Parties. Consequently, conscientious objectors were excluded from the scope of protection of Article 9, which could not be read as guaranteeing freedom from prosecution for refusal to serve in the army."
"100. The Court, however, is not convinced that this interpretation of Article 4 § 3 (b) reflects the true purpose and meaning of this provision. It notes that Article 4 § 3 (b) excludes from the scope of “forced or compulsory labour” prohibited by Article 4 § 2 “any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service”. The Court further notes in this respect the Travaux préparatoires on Article 4, whose paragraph 23 states: “In sub-paragraph [(b)], the clause relating to conscientious objectors was intended to indicate that any national service required of them by law would not fall within the scope of forced or compulsory labour. As the concept of conscientious objection was not recognised in many countries, the phrase ‘in countries where conscientious objection is recognised’ was inserted”. In the Court’s opinion, the Travaux préparatoires confirm that the sole purpose of sub-paragraph (b) of Article 4 § 3 is to provide a further elucidation of the notion “forced or compulsory labour”. In itself it neither recognises nor excludes a right to conscientious objection and should therefore not have a delimiting effect on the rights guaranteed by Article 9."
After summarising international developments related to the recognition of the right to conscientious objection, the Court states:
"108. The Court therefore concludes that since the Commission’s decision in Grandrath v. the Federal Republic of Germany and its follow-up decisions the domestic law of the overwhelming majority of Council of Europe member States, along with the relevant international instruments, has evolved to the effect that at the material time there was already a virtually general consensus on the question in Europe and beyond. In the light of these developments, it cannot be said that a shift in the interpretation of Article 9 in relation to events which occurred in 2002-2003 was not foreseeable. This is all the more the case considering that Armenia itself was a party to the ICCPR and had, moreover, pledged when joining the Council of Europe to introduce a law recognising the right to conscientious objection.
109. In the light of the foregoing and in line with the “living instrument” approach, the Court therefore takes the view that it is not possible to confirm the case-law established by the Commission, and that Article 9 should no longer be read in conjunction with Article 4 § 3 (b). Consequently, the applicant’s complaint is to be assessed solely under Article 9.
110. In this respect, the Court notes that Article 9 does not explicitly refer to a right to conscientious objection. However, it considers that opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 (see, mutatis mutandis, Campbell and Cosans v. the United Kingdom, 25 February 1982, § 36, Series A no. 48, and, by contrast, Pretty v. the United Kingdom, no. 2346/02, § 82, ECHR 2002-III). Whether and to what extent objection to military service falls within the ambit of that provision must be assessed in the light of the particular circumstances of the case."
The judgement of the Grand Chamber is highly significant, as it is likely that it will also have an impact on other regional human rights systems. In 2005, the Inter-American Human Rights Commission denied that the right to conscientious objection is protected under the Inter-American Convention on Human Rights, with arguments similar to the former European Commission on Human Rights (Vera et al v Chile, case 12,219). It has to be hoped that now the Inter-American Commission would overturn that judgement, should the opportunity arise. It is also hoped that the Korean Constitutional Court will follow the reasoning of the European Court in a new judgement on the right to conscientious objection, which is expected later this
Sources: European Court of Human Rights affirms the right to conscientious objection to military service, Joint statement of Amnesty International, Conscience & Peace Tax International, International Commission of Jurists, Quaker United Nations Office, Geneva, and War Resisters' International, 7 July 2011; European Court of Human Rights, Grand Chamber: Case of Bayatyan v. Armenia, 7 July 2011