The growing confusion over “conscientious objection”: a dissenting opinion on the ECtHR’s Bayatyan Judgment

By J.C. von Krempach, J.D. | July 20, 2011

Readers of this blog will have read the interesting and thought-provoking contribution of our friend Grégor Puppinck on the ECtHR’s recent decision in the case of Bayatyan v. Armenia.

This is indeed a groundbreaking judgment – albeit in a negative sense. I therefore think that Grégor has been somewhat too mild and gentle with the Court. I am of course fully aware that many of our readers sympathize with the idea that everyone’s “conscientious objection” should be respected and (where possible) accomodated, and that nobody should be constrained to do military service against his will. However, when considering this judgment the question is not what you and I sympathize with, but it must be whether the judgment finds any basis in the Convention the Court was called to apply. And this is clearly not the case. On the contrary, the Convention’s Article 4(3)(b) clearly shows that it is an option, not an obligation, for the Member States of the Council of Europe to provide an alternative to compulsory military service for conscientious objectors.

It is true that foreseeing the possibility of such an alternative service is nowadays a pre-condition for accession to the Council of Europe. This is why Armenia in 2001 took the committment to introduce such an alternative service within a transitional period. But Armenia has remained loyal to that commitment. The only problem for Mr. Bayatyan was that at the time when he was required to serve in the army, that commitment to introduce an alternative service was not yet applicable.

Thus, the Court has condemned Armenia although Armenia clearly had not breached any of its international commitments.

This is yet another example of the ECtHR’s lamentable tendency of enforcing what its judges find politically desirable rather than what the Convention actually foresees. And once again, the Court used its standard argument that the Convention is “a living instrument” that must be interpreted “in the light of the present-day conditions and of the ideas prevailing in democratic States today”, taking into consideration “the changing conditions in the member States and the emerging consensus as to the standards to be achieved”. In other words: the Convention has no certain meaning any more, and the judges have given a mandate to themselves to replace with whatever they believe to be an “emerging consensus” the obligations to which State Parties have consciously and willingly signed up. This risks undermining the credibility of the Convention, and it must be a reason for concern even for those who, in the particular case, happen to sympathize with the “emerging consensus”.

I therefore strongly disagree with this “landmark ruling”. And I daresay I find the way in which the Court’s Grand Chamber has overturned an earlier Chamber judgment (according which Armenia had not breached the Convention) rather careless.

By contrast, I fully agree with Grégor that the issue of “conscientious objection” needs to be better understood. To my regret, however, I do not believe that the ECtHR’s silly Bayatyan judgment will bring any real benefit for those who, invoking conscientious objection, refuse to perform immoral acts such as abortion, euthanasia, IVF, etc. (And having read Grégor’s comments I believe that he does not have any such hopes either).

My view is that the term “conscientious objection” is in and by itself unfortunate: rather than providing clarity, it creates confusion. I would therefore suggest that we look at the issue from a different perspective, discerning moral from “religious” (or rather: cultural) motivations.

Examples for “religious” rules are a Sikh’s obligation to wear a turban, or a Muslim’s obligation not to eat pork, or a Jew’s obligation to have his male offspring circumcised. These are not “moral” issues in the strict sense of the word, even if a person that is prevented from acting in accordance with these rules might be tortured by his or her conscience. On the other hand, if creating the possibility for religious believers to compliance with such rules does not seriously interfere with anyone else’s interest, there should be reasonable accomodation for them. And this is indeed part of what we call “religious liberty”.

As far as actions such as abortion, euthanasia, assisted procreation, human cloning, etc. are concerned, my firm view is that even where the laws of a country fails to provide appropriate sanctions, these actions are – and always will remain – profoundly immoral. And they are not immoral by virtue of a “religious belief” that one may happen to share or not to share. Instead, they are intrinsically immoral, so that any person is able to discern their immorality. With regard to those actions, conscientious objection is not a right, but a moral duty. (It is certainly remarkable that in the Council of Europe, the organisation overseein the ECtHR, serious attempts have been made by some politicians to undermine the exercise of conscientious objection with regard to abortion. Fortunately, these attempts have remained unsuccessful – but they were revelatory of the current moral confusion around matters of “conscience”)

But what about military service – especially in a democratic country that entertains an army only for legitimate self-defence purposes? Quite honestly, I have doubts that making a contribution to the self-defence of one’s own country can be morally objectionable. Certainly, if someone sincerely believes that he must not make such a contribution, it is his moral right not to make it. But at the same time, it is not morally wrong for the State to impose a proportionate sanction on him. The conscientious objector’s moral stance in such cases may deserve respect or even admiration – but it is not objectively well-founded.

To further elucidate the matter, I would point to the shining example of Bl. Franz Jägerstätter, a conscientious objector who was beatified by the Catholic Church some years ago. Franz Jägerstätter did not object to the idea of defending his own country against foreign invaders, but he declined to be part of an army that invaded foreign countries. At his time, there was no “alternative service” (although, allegedly, some well-meaning people allegedly offered to arrange that he would serve as a driver or similar rather than being sent to the ditches…). He perfectly well knew that in Nazi Germany, the price to pay for “conscientious objection” was one’s life, and yet he objected. And it is precisely this readiness to give his life for his moral convictions that proves that Franz’ conscientious objection was genuine.

Beate Francisce Jägerstätter, ora pro nobis!

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