Right to Conscientious Objection to Military Service

I refuse to pick up a rifle. I renounce all forms of violence- Jehovah’s Witness.

The country of South Korea casts a binding obligation on all men between the ages of 18-28 to perform military duties for a period of 21-24 months which usually follows staking social stigma. The Military Service Act provides up to three years of imprisonment for those who refuse. It has prosecuted more men for objecting to military service than any other country. The 1,00,000 Jehovah’s Witnesses in South Korea who are minority Christian denomination however constitutes majority of men who have been jailed for repudiating military service. Jehovah’s Witnesses resist all kinds of military service, including forms of service not calling for direct combat. Such conscientious objection is built on a belief “that Christians should abstain from war because they have no right to take human life.” The decade long battle of Jehovah’s Witness against such erratic prosecution and conviction is beholder of one of the longest running conflicts with the Korean Government.

Constitutional Court of South Korea in June 2018 ordered the government to introduce and provide for alternative service (civilian forms of service) for conscientious objectors surfacing a shake-up in the anachronistic form of punishment. The court ruled that Article 5 of the country’s Military Service Act is unconstitutional and in violation of human rights because it does not offer such alternative services. It gave the government and Parliament until the end of next year to revise the law. The Supreme Court commenced hearings first time in the last 14 years, with 900 cases pending before the lower courts.

The right to Conscientious Objection to Military Service is derived from Article 18 of International Covenant on Civil and Political Rights [hereinafter The Covenant], which guarantees the right to freedom belief or religion, conscience and thought. While the Covenant does not expressly demote to a right to conscientious objection, in 1993 the Human Rights Committee via general comment No. 22 asserted that such a right could be derived from Article 18, inasmuch as

“the obligation to use lethal force might seriously conflict with the freedom of conscience and the right to manifest one’s religion or belief.”

In Jong-nam Kim et al. v. Republic of Korea, the Committee held that the right to conscientious objection to military service is inbuilt in right to freedom of conscience and belief and religion, sanctions exemption from obligatory military service to any individual if the same cannot be settled with his beliefs or religion. One needs to understand that such objection is solely based on manifestation of one’s ‘beliefs and religion’; the terms have been broadly interpreted as Article 18 of the Covenant safeguards atheistic, non atheistic and theistic beliefs as well as right not to profess any religion.

In the case of Young-kwan Kim et al. v. Republic of Korea, the Human Rights Committee in 2014 found a violation of article 18 (1) of the Covenant, and also held that imprisoning the 50 Jehovah’s Witnesses as punishment for denying military service was arbitrary as it was legitimate exercise of freedom of conscience, belief and religion as guaranteed by the Covenant. The practice of convicting conscientious objectors has been also prevalent in Turkey and Azerbaijan. For the second time in 2018, an Azerbaijani court has given a young conscientious objector a criminal conviction for refusing to carry out compulsory military service. Turkey too scrutinizes the recognition of right to conscientious objection against military service as a part of International Human Rights law.

Clearly this right must not be destroyed by coercion.  The suppression of the denial for obligatory military service, implemented against individuals whose conscience or religion forbid use of arms is incompatible with the provision of Article 18 which absolutely protects right to possess a religion or belief. One might argue that military service is a fundamental obligation of all citizens and the conscientious objector shall not be allowed to live in a society that they refuse to defend. Also acknowledging that conscientious objectors will weaken nation’s military defence. It is a wrong and dissuaded notion that recognising and appreciating the beliefs and religion and conscience of such individuals will lead to an avalanche of applicants seeking exemption from military duties. One’s liberty has to be protected and promoted. There has to be an end to this pseudo sacrosanct system of punishment which is so inhumane and harsh. Public good can be achieved through alternate contributions as well. The very fact that the conscientious objector cling to a detested view which challenges the existing customs of society does not make it any less acute and profound.

Suggested Readings

1. UN Human Rights Council, 35th Session, Agenda 2 & 3, Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General, G.A. A/HRC/35/4
2. International Journal of Constitutional Law, Volume 13, Issue 1, 1 January 2015, Pages 327–329, https://doi.org/10.1093/icon/mov016.
3. Matthew Lippman, The Recognition Of Conscientious Objection To Military Service As An International Human Right, California Western International Law Journal, Vol. 21, No. 1, Art. 3 [1990].