convictions can evolve and that individuals voluntarily serving in armed forces
may over time develop conscientious objection to bearing arms.135
In April 2006, the Parliamentary Assembly of the Council of Europe called on member
states:
to introduce into their legislation the right to be registered as a conscientious objector at any time, namely before, during or after military service, as well as the right
of career servicemen to be granted the status of conscientious objector.136
Selective conscientious objection
Another issue is so-called selective conscientious objection, i.e., conscientious objection to
participation in particular military campaigns rather than to military service in general.
Conscientious objection of this type has a long history (examples range from Henry David
Thoreau’s refusal to pay taxes in 1846 during the US-Mexico war137 to servicemen who
refused to fight in the second Gulf War138) and is often connected with Just War Theory. It
is an issue of particular importance for professional service personnel and reservists.
Selective conscientious objection is problematic for two reasons. First, since the objector
is prepared to fight in other conflicts, his or her sincerity in making the claim may be
questioned. Second, the motivation may appear to be political rather than a dictate of conscience. Although in theory a member of the armed forces with a selective objection could,
subject to other considerations of effectiveness, be deployed to perform other duties, in
practice the outcome of such a claim is likely — as with the regular soldier who develops
a conscientious objection after enlisting — to be discharge from the armed forces and loss
of career.
Few states provide an exemption from service for selective conscientious objection. The US
Supreme Court has held that there is no constitutional requirement under protection of
freedom of religion to do more than to provide a general right.139 The German Federal Administrative Court, on the other hand, held in 2005 that freedom of conscience protected
an army software engineer who refused to work on a computer program for reasons of
conscience because he found the Iraq war to be unjust and illegal.140 141
Box 10.9
Selective Conscientious Objection141
Countries That Recognize Selective Conscientious Objection Countries That Do Not Recognize Selective Conscientious Objection
Austria, Belarus, Belgium, Canada, Denmark, Georgia,
Croatia, Czech Republic, Finland, Ireland, Lithuania,
Germany, Norway, Poland, Portugal, Russian Federation, United States
Serbia and Montenegro, Sweden, Switzerland
135 “Civil and Political Rights”, op. cit., note 107, para. 26.
136 Council of Europe Parliamentary Assembly Recommendation 1742 (2006), “Human rights of members of
the armed forces”, text adopted by the Assembly on 11 April 2006 (11th sitting).
137 H.D. Thoreau, On Civil Disobedience (Chicago: Charles H. Kerr, 1989).
138 “Jail for Iraq refusal RAF doctor”, BBC News, 13 April 2006, <http://news.bbc.co.uk/1/hi/uk/4905672.stm>.
139 Gillette v. United States, Supreme Court of the United States, 8 March 1971, United States Reports, Vol. 401,
1974, p. 437.
140 German Federal Administrative Court, Wehrdienstsenat (Military Service Division), 21 June 2005, Decision
No. 12 of 2004, Case No. WD 12.04 (see M. Bohlander, “Superior Orders, Unjust War and the Soldier’s Conscience”,
Inter Alia, Vol. 4, 2005, pp. 17-19).
141 ODIHR-DCAF questionnaire, question 35; participating States not replying: Bosnia and Herzegovina,
Estonia, Latvia, Slovenia, Ukraine, United Kingdom.
84
Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel
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