Mert Birer - Eren Barış Karatay - Arda Özge

Compulsory Military Service Case Law Analysis

Global Outlook and General Information on Compulsory Military Service

Compulsory conscription is frequently used for national defense, promoting

patriotism, and integrating the nation by bringing people from different backgrounds
together. People who refuse to serve based on personal or religious beliefs are
referred to as Conscientious objectors. For instance some particular churches have
been following a pacifist doctrine historically which forbids their followers to participate
in the armed forces. Some countries have special legal status for them, however in
others it is a crime to refuse military service and this raises significant questions under
international human rights law.

As of 2024 there are 58 UN Member countries with compulsory military service.

(The World Factbook - The World Factbook, n.d.) Some of them have compulsory
military service for both genders (i.e. Sweden, Israel) but most of the countries have
compulsory military service only for their male citizens. Nowadays most of the NATO
and European Union countries don't have compulsory military service in their domestic
law because they choose to promote professional military careers when recruiting
soldiers.

Key International Positions and Legal Frameworks on Compulsory Military Service

European Court of Human Rights (ECtHR): The European Court of Human Rights has
played an important role in defining the rights of conscientious objectors under the
European Convention on Human Rights. Cases like Bayatyan v. Armenia and Erçep
v. Turkey has shown that forcing one involuntarily to compulsory military service
constitutes a violation of Article 9. (Article 9: Freedom of Thought, Belief and Religion
| EHRC, n.d.) The ECtHR’s general opinion on the issue is that states should not
penalize individuals for their conscientious objection.

UN Human Rights Committee (UNHRC): The UN Human Rights Committee officially

stands as a pro-conscientious objection position by their interpretation of Article 18 of
the International Covenant on Civil and Political Rights. The right to conscientious
objection is a clear expression of the freedom of conscience, religion, and thought,
according to the Committee's General Comment No. 22.(General Comment 22 on
Article 18 of the ICCPR, n.d.) Their view on this issue is clear without any compromise
as they have said “No restrictions on other grounds may be imposed ‘even if they
would be allowed as restrictions to other rights protected in the Covenant, such as
national security’”.

UN Human Rights Council: The United Nations Human Rights Council strengthened
these positions with a series of resolutions and declarations calling for universal

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recognition of conscientious objection. The Council has consistently supported efforts
that encourage states to establish laws that allow citizens to refuse military service on
the basis of conscience.

Case Overviews

• Bayatyan v. Armenia

Vahan Bayatyan, a citizen of Armenia and a member of Jehovah's Witnesses,

refused compulsory military service based on his religious beliefs and was convicted
in 2002. The ECtHR ruled in 2011 that the right to conscientious objection must be
protected under Article 9 (freedom of thought, conscience, and religion) of the
European Convention on Human Rights. It was a landmark decision changed the
courts stance on conscientious objection.

• Ülke v. Turkey

Osman Murat Ülke, a conscientious objector who refused compulsory military

service on conscientious grounds, was arrested several times and sentenced to
imprisonment. The ECtHR ruled in 2006 that the repeated prison sentences fell under
the category of torture and inhuman treatment and violated Article 3 of the Convention,
focusing on the punitive measures taken against objection rather than the right to
refuse miltiary service.

• Kanatlı v. Turkey

Kanatlı, an individual who refused compulsory military service on conscientious

grounds, had his request rejected by the Turkish judicial authorities and faced
penalties. The ECtHR ruled in 2024 that the right to conscientious objection should be
legally recognized and criticized Turkey's shortcomings in this regard.

Case Law Analyses

Initially, the ECtHR was hesitant to directly link the right to conscientious
objection to freedom of thought, conscience, and religion. In previous cases, the court
did not recognize this right as an explicit right under the Convention and generally
gave member states a wide margin of appreciation in this regard.

The Bayatyan judgment is the first instance in which the ECtHR explicitly
recognized the right to conscientious objection under Article 9 of the European
Convention on Human Rights. This judgment shows that the court has adopted a
broader interpretation in recognizing this right. The Court found that Bayatyan's right
to freedom of religion had been violated and that his right to conscientious objection
should be protected within the framework of this freedom.
 In Ülke v. Turkey and Kanatlı v. Turkey, the ECtHR emphasized the
permanence of the right to conscientious objection and demanded that Turkey take
the necessary steps in this regard. In the Ülke case, repeated punishments were found
to constitute torture and inhuman treatment. In the Kanatlı case, the need for legal
recognition of the right to conscientious objection was emphasized and Turkey's
shortcomings in this regard were criticized.

The Effects of the ECtHR Judgments on Turkey

Pressure for Legal Reform: ECtHR judgments have put pressure on Turkey to legally
recognize the right to conscientious objection. However, such a process of legal
change may take time and require complex political processes.

Social Awareness and Change: The judgments have raised public awareness in
Turkey and strengthened public pressure for greater respect for human rights. The
recognition of the right to conscientious objection is an important step towards the
expansion of individual freedoms and is critical for Turkey to comply with international
norms.

Comparative Analysis of Approaches to Compulsory Military Service

Although the EctHR stance on the issue was permitting, since the Bayatan v.
Armenia case it has considered conscientous objection protected under the Article 9
of the ECHR which guarantees the right to freedom of thought, conscience and
religion. The Court recognized that refusing to serve can be a manifestation of religious
or personal beliefs. The UNHRC on the other hand, recognizes the right to
conscientious objection due to its view that an obligation to use lethal force conflicts
with freedom of conscience under Article 18 of the ICCPR, which is similar to Article 9
of the ECHR. So the positions of the two frameworks are alike with a slight difference
in interpretation.

Conclusion

The issue captures the essential challenges of international law. Concerns of

national security could grant states a wide margin of appreciation in many situations,
but interpretations have shifted towards a definite rejection of compulsory military
service from a human rights perspective over time. Although in both the UNHRC and
EctHR interpretations conscientious objection is considered a fundamental human
right, a further analysis of whether the national security mandate can vary according
to the particular threats that a country faces due to its unique position or the culture of
the nation can be made to determine if this right is in fact as universally applicable as
other fundamental human rights.
 References

A. Yiannaros, ‘From Grandrath to Bayatyan: The development of European

jurisprudence on conscientious objection to military service’, InterAmerican and
European Human Rights Journal 2016 (2).

Bayatyan v. Armenia, Judgment European Court of Human Rights, 7 July 2011.

General Comment 22 on Article 18 of the ICCPR. (n.d.). A Conscientious Objector's

Guide to the International Human Rights System.

The World Factbook - The World Factbook. (n.d.). CIA.

Ülke v. Turkey, Judgment European Court of Human Rights, 24 January 2006.

Kanatlı v. Türkiye, Judgment European Court of Human Rights, 12 March 2024.

UN Human Rights Council, Conscientious objection to military service, 1 May 2017,

UN Doc. A/HRC/35/4.

European Court of Human Rights, Guide on article 9: freedom of thought,

conscience and religion, 31 August 2022.