Josée D’Aoust
Presentation scheduled for: 22 October 2007
1.1
Research Question
Is there legitimacy in distinguishing between universal and selective objection 1 to
military service and what is the impact of this conclusion on a human rights and refugee law
perspectives?
1.2
Background and Hypothesis
The right to freedom of thought, conscience and religion is recognized in many
international, regional and national human rights instruments.2 While the “forum internum” is
absolute3, the “forum externum” may be the object of some restrictions if it is prescribed by
law and only to the extent necessary to achieve a legitimate aim.4 An assessment of the
necessity and proportionality criteria often requires a determination of the scope of the margin
of appreciation a State is entitled to exercise in limiting individual human rights in the name
of higher pressing interests while being mindful, at the same time, of the State’s obligation to
respect the principle of non-discrimination.
While conscientious objection to military service (hereinafter “CO”) is not specifically
mentioned in international or regional human rights instruments, many international bodies
stated that it could nevertheless be inferred from them.5
The concept of CO, in countries that recognized it, evolved from a protection afforded
to members of traditional peace churches, who adhered to the belief of their church’s
1
The New Conscientious Objection, From sacred to secular resistance, ed. Charles C. Moskos and John
Whiteclay Chambers II, Oxford University Press, 1993, page 5; Universal objection whereby the objector refuse
to participate in any war while the selective objector opposition is the refusal to participate in a particular war.
Universal also needs to differentiate from absolutist, which consist of opposing any form of participation to
military activities, including alternative service in lieu of military service or paying taxes used for military
purposes.
2
Universal Declaration of Human Rights, 1948, Article 18; International Covenant on Civil and Political Rights,
1996, Article 18; European Convention for the Protection of Human Rights and Fundamental Freedom, 1950,
Article 9; American Convention on Human Rights, 1969, Article 12; African Charter on Human and Peoples’
Rights, 1981, Article 8; Canadian Charter of Rights and Freedoms, Article 2 a);
3
Manfred Nowak and Tanja Vospernik, Permissible Restrictions on Freedom of Religion or Belief, in the book
Facilitating Freedom of Religion or Belief: A Deskbook, Oslo, Martinus Nijhoff Publishers, 2004, page
4
International Covenant on Civil and Political Rights, 1996, Article 18 (3); European Convention for the
Protection of Human Rights and Fundamental Freedom, 1950, Article 9 (2); American Convention on Human
Rights, 1969, Article 12; African Charter on Human and Peoples’ Rights, 1981, Article 8; Canadian Charter of
Rights and Freedoms, Article 2 a);
5
Human Rights Committee, General Comment No. 22, ICCPR, paragraph 11; Commission on Human Rights
Resolution 2004-35, 55th Meeting, 19 April 2004, Adopted without a vote, E/CN.4/2004/127;Commission on
Human Rights, Civil and Political Rights, including the question of conscientious objection to military service,
Report of the Office of the High Commissioner for Human Rights, 16 February 2004, E/CN.4/2004/55.
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opposition to participate in any war, to the protection of individual beliefs based on religious,
moral, ethical or other similar profound convictions.
CO often collides with the State strongly rooted conviction that the duty of its citizens
is to defend their country against what their democratically elected institutions have defined
as the enemy, independently of the legitimacy of this assessment, and for the State any
exception to the fulfillment of this duty must be strictly limited. Therefore, most States that
exempted CO refuse to extend this exemption to selective conscientious objectors (hereinafter
“SCOs”) described as conscientious objector to a particular war.
SCOs who have no hope of being either exempted from conscription or, after having
enrolled voluntarily in the army, authorized to refuse deployment and participation in a
particular war they genuinely belief is immoral are faced with limited options: desertion or
punishment. Consequently, they often seek international protection since they cannot benefit
from the protection of their own country.
In seeking such protection, SCOs are confronted with different interpretations of a
wide spectrum of concepts, which vary from the bare existence of the right to conscientious
objection to its scope, limitations and application to international protection mechanisms.
If there is no legitimate reason for the distinction between universal and selective
objection then the ultimate question is the genuineness of the objector’s belief and a denial of
such status, based on discriminatory grounds, could be considered persecution and trigger
international protection.
1.3
Sub-Questions to address
In answering the thesis question, I will need to address a series of sub-questions such
as:
 Is CO a human right protected as an intrinsic part of the freedom of belief,
conscience or religion?
 Once states recognize CO status can they discriminate in the underlying reasons
that justify the genuine belief?
 What constitute legitimate justifications to a genuine belief?
 How important the “principle of tolerance6” is in the recognition of CO?
 Is article 8 (3) (c) (ii)7 of the ICCPR a limitation to the freedom of conscience or
belief or was it simply the acknowledgment of the actual state of affairs at the time
of the adoption of the Covenant?
 Could the justification of a genuine moral belief be based on legal grounds even if
uncertainty exists about the legal appropriate finding?
 Could a parallel be made with the legal drafting of the right to life and its specific
provision on the death penalty and its development in time?
 Should the margin of appreciation of a State be strictly limited in light of the
serious consequence it may entail; the coercion of the objector to participate in a
military action where “…to use lethal force may seriously conflict with the
6
José de Sousa e Brito, Conscientious Objection, in the book Facilitating Freedom of Religion or Belief: A
Deskbook, Oslo, Martinus Nijhoff Publishers, 2004, page 274. The author states: “Conscientious objection
represents that transformation of the principle of tolerance, which is prior to and a social precondition of the
constitutional state, into a human rights.”
7
Same language can be found in article 4 (3) c) of the European Convention on Human Rights.
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freedom of conscience and the right to manifest one's religion or belief.”8 or should
the margin of appreciation be wider based on a national security risk assessment?
 In the context of SCO, should the concept of pressing needs be evaluated in light
of international law standards on the right to resort to war?
 Is article 8 (3) (c) (ii) of the ICCPR a legitimate consideration in widening the
margin of appreciation of State pursuant to Article 18 (3) 9?
As regard to protection mechanisms:
 Is the presumption of the State’s ability or willingness to protect its citizens
applicable in the present case considering that protection will be sought mostly
from nationals of countries where generally the highest judicial authority will have
upheld the legitimacy of the non-recognition of SCOs?
 Is the interpretation by States of paragraph 171 of the United Nations High
Commissioner for Refugee (UNHCR) Handbook,10 as relevant strictly to the
exclusion clause, to restrictive or not in the spirit of the Convention of the Status of
Refugee?
 Even if its applicability is restricted to the exclusion clause what level of
participation must the applicant demonstrate, if any, before his belief becomes
“genuine”?
1.4
Previous studies
Several books and articles have been written on the issue of COs and SCOs, therefore the
challenge of this research will focus on finding a creative approach and issues to discuss11.
1.5
Choice of Methodology and sources
My research will adopt a legal positivist approach because I believe it is the most suitable
approach to propose a persuasive answer to the question. My research will take as a basis for
discussion the recent case of Hindzman v. Canada (Citizenship and Immigration) 12 since it
raises many of the issues I want to address including, the relevancy of the legitimacy of the
war as a foundation for the moral conviction of the objector and the appropriateness of the
interpretation of paragraph 171 of the United Nations High Commissioner for Refugee
(UNHCR) Handbook.
8
General Comment No. 22, ICCPR, paragraph 11.
Similar provision can be found in article 4 (3) c) and 9 (2) of the European Convention on Human Rights.
10
United Nations High Commissioner for Refugee (UNHCR), Handbook on procedures and criteria for
determining refugee status,
11
Supra Notes 1 and 6; Christopher Decker and Lucia Fresa, The Status of Conscientious Objection under
Article 4 of the European Convention on Human Rights, , Winter 2001, 33.N.Y.U.J Int’l L. & P. 379; Cecilia M.
Bailliet, Assessing Jus Ad Bellum and Jus In Bello within the Refugee Status Determination Process:
Contemplations on Conscientious Objectors Seeking Asylum, Spring 2006, 20 Geo. Immigr. L.J. 337.
12
Jeremy Hinzman et al, Case No. TA4-01429, TA4-01430 and TA4-01431, Immigration and Refugee Board of
Canada, 16 March 2005, paragraph 10; See appeals Judgment: Jeremy Hinzman et al v. Canada (Citizenship and
Immigration), Federal Appeal Court of Canada, 2006, FC, 420; Jeremy Hinzman et al v. Canada (Citizenship
and Immigration), Federal Appeal Court of Canada, 2007 FCA 171
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3
I will first state the applicable law at the international, regional and national level in regard to
the existence, scope and limitations of the right of conscientious objection to military service
and consequently I will draw upon International and Regional treaties and conventions 13 as
well as the Canadian Charter of Rights and Freedoms.
Secondly, since rights evolve through times the need to interpret the concepts protected and to
reformulate our understanding of the aims and scope of their protection will require me to
consider a vast collection of documents that, while not binding, are nevertheless often the
expression of general principles, consensus or States’ practice.14
Thirdly, I will present and summarize the most important findings by International and
Regional Bodies, such as the Human Rights Committee and the European Court of Human
Rights on their interpretation of the scope and limitations of the right of conscientious
objection to military service and through an analysis of the Canadian Immigration and
Refugee case law try to present the principle arguments advanced and adopted to grant or
refuse international protection to SCOs. 15
Fourth, after having highlighted some of the main reasons advanced to justify the distinction
between CO and SCO’s I will present arguments, based on the same sources, to demonstrate
either their legitimacy or lack thereof.
At the end of my research I hope that I will be able to state that: Based on a human rights
perspective there is no legitimate reason for the distinction between universal and selective
objection to military service. The ultimate question is the genuineness of the objector’s belief.
Therefore, on a refugee’s law perspective a denial of such status, based on discriminatory
grounds, could be considered persecution and trigger international protection.
13
Article 38 (a) of the International Court of Justice
Declarations, General Assembly and Regional Bodies Resolutions, General Comments, Report,
Recommendations and Guidelines from International and Regional Human Rights bodies, as well as specialized
agencies.
15
Article 38 (d) of the International Court of Justice
14
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