This Day in International Law: October 13th
By Sam Mottahedan
On this day in 1943, a 26-year-old Robert Lowell is sentenced to one year and one day in jail for evading the draft. From the infamous Danbury Correctional Institutional in Connecticut, he would write some of his most memorable poems for his collection The Land of Unlikeness (1946). He explained his decision not to serve in World War II in a letter addressed to President Franklin Roosevelt, where he stated his opposition to the Allied tactic of saturation bombing of civil population centres and the US demand for unconditional surrender. In his view such tactics intend “the permanent destruction of Germany and Japan”. He concluded: “I cannot honorably participate in a war whose prosecution, as far as I can judge, constitutes a betrayal of my country”.
Lovell’s refusal to serve brings to mind recent developments in the right to conscientious objections to military service. To this day, Article 9 of The Charter of Fundamental Rights of the European Union is the only regional human rights instrument that explicitly recognizes the right to conscientious objection. However, since the late 1990s, conscientious objection has come to be recognised as a right derived from the right to freedom of thought, conscience, and religion provided by Article 18 of the International Covenant on Civil and Political Right as well as Article 9 of the European Convention of Human Rights. The endorsement of a right to conscientious objection to military service has been stated in a significant number of resolutions and recommendations by the UN Commission on Human Rights, and by the Committee of Ministers and the Parliamentary Assembly of the Council of Europe.
However, objections made by Lowell would to this day be unlikely to engage the right to conscientious objection. Although there is no international definition of conscientious objection, the Human Rights Committee has identified conscientious objection uniquely when the right to freedom of thought, conscience and religion conflicts with the obligation to use “lethal force”. In Enver Aydemir v. Turkey, the Grand Chamber of the European Court of Human Rights considered it legitimate therefore to restrict recognition of conscientious objection “to religious or other beliefs that included a firm, fixed and sincere objection to participation in war in any form or to the bearing of arms”. The General Comment of the UN Human Rights Committee implicitly endorsed such a view.
In other words, selective conscientious objection is not an international human right. Objection to a specific war (as opposed to all wars) for non-pacifist reasons such as Lowell’s could only be recognized as a right by individual states. For strong arguments that selective conscientious objection should be recognized in the US see here; and by international law see here.