International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders

International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders

Hitomi Takemura International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders 123

Dr. Hitomi Takemura hitomi@mercury.ne.jp ISBN 978-3-540-70526-0 e-isbn 978-3-540-70527-7 Library of Congress Control Number: 2008935625 c 2009 Springer-Verlag Berlin Heidelberg This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMX Design GmbH, Heidelberg, Germany Printed on acid-free paper 9 8 7 6 5 4 3 2 1 springer.com

Preface The task of this study lies in clarifying the efforts of contemporary public international law, across several categories, in relation to the rights and duties of individuals to the international community. Individual criminal accountability is an interesting development of the international community, challenging a traditional framework of public international law. At the same time, the argument whether individuals may stand up and take action against their own country on the basis of international obligations and international human rights is also a stimulating topic for public international law. It necessitates interdisciplinary research within public international law. Therefore this study will tackle this ambitious task, though not exhaustively. Both international criminal justice and the right to conscientiousobjection in international human rights law are developing notions. Aspirations to create a world of peace and stability may contribute to the further development of these two notions. The importance given to the individual within the international community is at the heart of this study. Individuals should not sit on the sidelines, shielded by their States; instead, they need to take international law seriously in the twenty-first century, when, like it or not, the fearfully ambiguous word globalisation is the word for our times (Annan 2000, pp. 9 17). The right to conscientious objection under international law may sometimes serve as a means of advancing peace and disarmament. In this connection, the duty of individuals to contribute to international peace and security will be discussed by means of examining international criminal law, specifically the issue of the defence of superior orders. The rising number of conscientious objectors may be considered domestically as either a problematic or an illuminating phenomenon by many societies. This study aims to provide views to support the latter argument. In doing so, the issues are studied through the lens of public international law, especially international human rights law and international criminal law. Studies of international human rights law on the issue of conscientious objection and international criminal law on the issue of the defence of superior orders have guided this study in its rights and duties approach. v

vi Preface It can be logically claimed that if individuals have the duty to disobey manifestly illegal orders under international criminal law, then they do not need to claim their rights to disobey manifestly illegal orders under public international law. However, the right and duty to disobey manifestly illegal orders under public international law may not necessarily be a case of either-or, as the rights and duties of individuals under public international law are often non-self-executing in the national dimension. Therefore the right and the duty of individuals to disobey manifestly illegal orders should supplement each other to strengthen their normativeness. In order to clarify the rights and the duties of individuals, the relationship between the defence of superior orders and the right to conscientious objection is discussed in Chap. 1, followed by a brief background of the phenomenon of conscientious objection. Chapters 2 4 deal with the aspect of the right to disobey manifestly unlawful orders, though the argument is not confined to selective conscientious objectors, who only object to participating in unlawful wars and/or the use of weapons. Rather, Chaps. 2 4 provide a general view of the right to conscientious objection in international law, because its status under international law is by no means clear even today. Chapter 5 looks at conscientious objectors as asylum seekers from the viewpoint of international refugee law. As opposed to the rights of individuals, Chap. 6 focuses on the duty of individuals to disobey manifestly illegal orders. The restrictions on the defence of superior orders and several other humanitarian norms imposed on individuals are studied in view of the right to conscientious objection, discussed in Chaps. 2 4. Japan, 2008 Hitomi Takemura References Annan KA (2000) MillenniumReport: Wethe Peoples: The Role of the United Nations in the 21st Century. United Nations, New York

Acknowledgments Over the years, I have been assisted by a number of people in accomplishing my doctoral study abroad. First and foremost, I thank my supervisor Professor William A. Schabas and the Yoshida Scholarship Foundation for their invaluable support. Professor Schabas always shares his enthusiasm for studies in international criminal law with students. His wealth of knowledge and sophistication have inspired my study. The Yoshida Scholarship Foundation has provided me with generous assistance throughout my studies in Galway, Ireland. Without their financial and emotional support, my study would never have been achieved. I thank my thesis examiners, Dr. Vinodh Jaichand and Professor Kevin Boyle of Essex University, for their comments and supports. The Irish Centre for Human Rights of National University of Ireland, Galway, provided students with an outstanding environment surrounded by friendly staff and colleagues. I thank all the Centre s staff and colleagues who shared academic interests in international criminal law and human rights. I thank my supervisors in Japan, Professor Tetsuo Sato of Hitotsubashi University and Professor Sonoko Nishitateno of Tokyo University of Foreign Studies. Their encouragement has kept me motivated and has guided me towards academics. Many people have provided English language editing assistance from time to time. Roisin Burke and Jennifer Schuetze-Reymannwere always of great help. My life in Galway would hardly have been so comfortable and joyful without such a nice flatmate, Christina Collins and her friend John Maher. My thanks especially go to friends who visited me in Galway from abroad and shared Guinness to cheer me up. Andleeb Chaudhry has been a rare friend. I sincerely thank everyone I encountered in Galway from the bottom of my heart. Last but not least, I thank my parents, Nobushige and Masa Takemura for their love and kindness. My sister, Kanae, and my now-deceased grandmothers, Kazu Takemura and Tsune Iwano, have offered mental sustenance. vii

Contents 1 Introduction... 1 1.1 RighttoConscientiousObjectionandDutytoDisobey... 1 1.2 Road to Peace: Conscientious Objection as a Means of Achieving Peace... 4 1.3 CrisisofConscription:DeclineoftheAuthorityofStates... 8 1.4 VolunteerSoldiersandConscientiousObjection... 9 1.5 Absolute Conscientious Objection and Selective Conscientious Objection... 10 1.6 ConscientiousObjectionandCivilDisobedience... 12 1.6.1 GeneralDistinction... 12 1.6.2 Legal Philosophers View... 13 1.6.3 ObjectionstoConscientiousObjection... 13 1.7 ConcludingRemarks... 14 References... 15 2 Right to Conscientious Objection in the United Nations Human Rights Law... 19 2.1 UnitedNationsHumanRightsNorms... 20 2.1.1 Activities Before 1970...... 21 2.1.2 Travaux Préparatoires of the International Covenant on Civil and Political Rights...... 22 2.1.3 NGO Initiatives from the Late 60s...... 29 2.1.4 Discussion Before the Third Committee of the General Assembly in 1970... 30 2.1.5 Resolution 11 B (XXVII) of 1971 by the Commission onhumanrights... 33 2.1.6 The Secretary-General s Activities Following Resolution 11 B (XXVII) of 1971...... 38 2.1.7 General Assembly Resolution 33/165 of 1978...... 40 2.1.8 Report on Conscientious Objection Prepared by the Sub-Commission of 1984.... 42 ix

x Contents 2.1.9 Draft Resolution of 1985 by the Commission onhumanrights... 45 2.1.10 Resolution 1987/46 by the Commission on Human Rights.. 48 2.1.11 Resolution 1989/59 by the Commission on Human Rights.. 50 2.1.12 Convention on the Rights of the Child of 1989...... 51 2.1.13 Report by Special Rapporteur of 1992.... 55 2.1.14 Resolution 1993/84 by the Commission on Human Rights.. 55 2.1.15 General Comment by the Human Rights Committee of 1993.... 56 2.1.16 Resolutions Following Resolution 1993/84 ofthecommissiononhumanrights... 61 2.1.17 Study of the Issue of the Administration of Justice Through Military Tribunals of 2005..... 66 2.2 EnforcementMechanism... 67 2.2.1 Individual Communication and Evolving Interpretation ofthecovenant... 67 2.2.2 Yeo-Bum Yoon and Myung-Jin Choi V Republic of Korea.. 70 2.2.3 Consideration of Reports Submitted by States Parties UnderArticle40oftheCovenant... 74 2.3 ConcludingRemarks... 80 References... 81 3 Right to Conscientious Objection in European Human Rights Law.. 83 3.1 EuropeanHumanRightsNorms... 84 3.1.1 DraftingtheEuropeanConventiononHumanRights... 84 3.1.2 Silence of the Travaux Préparatoires of the European Convention on Human Rights with Respect to ConscientiousObjection... 88 3.1.3 Resolutions by the Council of Europe... 88 3.1.4 Charter of Fundamental Rights of European Union...... 94 3.2 The European Commission of Human Rights andtheeuropeancourtofhumanrights... 95 3.2.1 Earlier Individual Petitions... 96 3.2.2 Individual Petitions Arguing Violation of Prohibition ofdiscrimination...100 3.2.3 Individual Petitions Arguing Violation of Prohibition ofdegradingtreatment...101 3.2.4 European Committee of Social Rights...103 3.3 Commissioner for Human Rights of the Council of Europe......104 3.3.1 GreekPractice...105 3.3.2 FinnishPractice...106 3.4 ConcludingRemarks...109 References...109

Contents xi 4 Inter-American Human Rights Law...111 4.1 Inter-American Human Rights Institutions an Unsettled Position. 112 4.2 ConcludingRemarks...118 References...118 5 International Refugee Law and Conscientious Objection...119 5.1 ConscientiousObjectorasAsylumSeeker...119 5.2 ThresholdsforConscientiousObjectorasAsylumSeeker...121 5.3 StatePractice...124 5.3.1 TheKrotovCase...125 5.3.2 HinzmanCase...127 5.3.3 Position of Refugee Status Appeals Authority ofnewzealand...129 5.3.4 Iranian Selective Conscientious Objector in Time of Peace.. 130 5.3.5 EuropeanUnionQualificationDirective...131 5.4 Conscientious Objection to Military Service Itself as Ground forasylum...133 5.5 ConcludingRemarks...133 References...135 6 Defence of Superior Orders: Duties of Individuals to Disobey Manifestly Illegal Orders under International Law...137 6.1 DefenceofSuperiorOrdersandDutiesofIndividuals...137 6.2 History of Defence of Superior Orders Under International Law... 139 6.3 MainTheoriesoftheDefenceofSuperiorOrders...155 6.3.1 Doctrine of Respondeat Superior...155 6.3.2 Doctrine of Absolute Liability.... 156 6.3.3 Conditional Liability Approach: Manifest Illegality Principle...157 6.3.4 Doctrine of Mitigation Factor..... 158 6.3.5 DoctrineofJustificationandExcuse...159 6.3.6 ObservationonTheoriesofDefenceofSuperiorOrders...161 6.4 Criminality and Illegality of International Wrongful Act....163 6.4.1 Genocide...163 6.4.2 Apartheid...168 6.4.3 Aggression...173 6.4.4 CrimesAgainstHumanityandWarCrimes...176 6.5 ConcludingObservation...178 References...179 7 Impacts of Jus Ad Bellum and Jus In Bello on Rights and Duties of Individuals to Disobey Manifestly Illegal Orders...183 7.1 On the Distinction between Jus Ad Bellum and Jus In Bello...183 7.2 History of Jus Ad Bellum and Jus In Bello...185 7.3 Relationships between Jus Ad Bellum and Jus In Bello...187

xii Contents 7.4 Belligerent Equality.... 189 7.5 Moralists Views on Belligerent Equality....... 190 7.6 In Defence of Belligerent Equality...192 7.7 The Case of Concurrence of Jus Ad Bellum Violation and Jus In Bello Violation...194 7.7.1 Legality of the Threat or Use of Nuclear Weapons...194 7.7.2 Legal Consequences of the Construction of a Wall in the OccupiedPalestinianTerritory...196 7.8 Duties of Individuals Derived from Jus Ad Bellum...196 7.9 State Practice of Conscientious Objector Based on Jus Ad Bellum.. 200 7.10 ReligiousViews...204 7.11 ConcludingRemarks...205 References...205 8 Conclusion...207 8.1 TowardsanApproachofComplementaryRightsandDuties...207 8.2 StatusofIndividualsUnderInternationalLaw...208 8.3 Duties of Individuals to the Community Under International Law.. 210 8.4 Article29(1)oftheUniversalDeclarationofHumanRights...210 8.5 MeaningsofDutyandCommunity...215 8.6 ConscienceofMankind...216 8.7 InSearchofPragmaticSolutions...218 References...224 Bibliography...227 Index...247