Venice Commission: There is a right to refuse military service on grounds of conscience
Kyiv • UNN
The Venice Commission believes that Ukraine must ensure the right to refuse military service due to confirmed religious beliefs. During the war, the state must provide the possibility of alternative service without weapons.
According to European experts, there should be a right to refuse military service based on sincere beliefs, including those of a religious nature.
This is stated in the conclusion published by the Venice Commission, reports UNN.
States may require a certain level of justification for sincerely held beliefs. However, ‘the denial of a special exemption granted to a person or group of persons on account of their religious belief or conviction constitutes an interference with their freedom to manifest their religion or belief,’ the Venice Commission's opinion states.
Among other points of the Venice Commission's conclusion is the refusal "on grounds of conscience".
The essence of the right to refuse military service on grounds of conscience is that under no circumstances may a person who refuses military service on grounds of conscience be required to carry or use weapons, even for self-defense.
The Venice Commission recalls the position of the ECHR and the UN Human Rights Committee:
Refusal to perform military service is based on the right to freedom of thought, conscience and religion, when they conflict with the obligatory use of force at the cost of human lives
Restrictions on the right to exemption from military service must be clearly provided for by law. In addition, during a war, the state must ensure the right to alternative (non-military) service without the need to carry weapons.
Almost all member states of the Council of Europe that have ever had or still have compulsory military service have introduced alternatives to such (military) service
It is separately noted that "a state that has not done so enjoys only a limited margin of appreciation and must give convincing and weighty reasons to justify any interference.
The system, which does not allow ‘any deliberate exemptions’ from compulsory military service, was assessed. According to the conclusion of the Venice Commission, punishment of those who ‘refuse to perform their duty’ ‘cannot be considered a measure consistent with a democratic society’.
Among the key points of the analysis:
The very nature of conscientious objection to military service implies that it cannot be completely excluded in time of war, albeit the margin of appreciation of the state is wider, especially in the event of a mobilisation.
It is also noted that states have a certain margin of appreciation in determining the circumstances in which they recognize the right to refuse military service on grounds of conscience. The contracting states are also free to establish mechanisms for considering requests for refusal of military service on grounds of conscience.
Addition
At the same time, there is no clear definition of conscientious objection, according to an analysis published by the Venice Commission.
Reference
In December last year, the Constitutional Court of Ukraine requested the Venice Commission to analyze the issue of alternative (non-militarized) service under martial law and to provide an expert opinion. The Venice Commission provided a detailed analysis, referring to Article 9 of the European Convention on Human Rights (ECHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR).
