Sepet (FC) and Another (FC) (Appellants) v. Secretary of State for the Home Department (Respondent)
35. Mr Nicol was, I think, inclined to accept these principles as correct for most forms of civil disobedience. Conscientious objection to a law is not enough to make punishment unjust. It is not a reason why the objector has a right to be treated differently. But he said that military service was different. An obligation to kill people was something which the state could not justly impose upon anyone who had a deeply held objection to doing so.
36. The difficulty about this argument is that it is accepted that in general the state does have the right to impose upon its citizens an obligation to kill people in war. It would of course be different if they were being asked to commit war crimes; in such a case, anyone could legitimately object. But ordinary army service, though demanding and often inconvenient, sometimes unpleasant and occasionally dangerous, is in many countries (and was in many more, including the United Kingdom) part of the citizen's ordinary duty.
37. Mr Nicol did not offer a rational ground for distinguishing between objection to military service and objection to other laws. One might feel intuitively that some such ground might be constructed around the notion of the sanctity of life, although I am not sure that even that could be described as rational. In any event, it would not have served Mr Nicol's purpose because it does not form the basis of these applicants' objections. They would have no objection to fighting in a war for a Turkish (or Kurdish) government of the right political complexion. He appealed instead to the practice of nations and the opinions of jurists, which he says support the proposition that conscientious objection to military service on any religious or political ground should be recognised.
38. The question in this appeal is the meaning of the term "refugee" in the Refugee Convention. That in turn raises the question of what is meant by "persecuted". Mr Nicol says that if people are subjected to punishment which would be regarded as discriminatory by reference to their fundamental human rights, they are being persecuted. If those fundamental rights relate to their religious beliefs or political opinions, then they are being persecuted for reasons of those beliefs or opinions. My Lords, I have not attempted to examine all aspects of these propositions but for present purposes I am content to accept them. I shall therefore consider whether punishing conscientious objectors is an infringement of their fundamental human rights to freedom of conscience and opinion.
39. How does one establish the scope of fundamental human rights for the purposes of an international convention such as the Refugee Convention? Many state parties to the Convention are also parties to human rights conventions, such as the ECHR and the International Covenant on Civil and Political Rights ("ICCPR"). Mr Nicol says that the current state of human rights as expressed in those and other similar conventions is the best guide to their content for the purposes of the Refugee Convention.
40. Mr Howell QC, who appeared for the Secretary of State, said that the question was whether a right of conscientious objection had become part of customary international law. For that purpose there had to have been a general and consistent practice of states which was recognised as conforming to a legal obligation: see Oppenheim's International Law, vol 1, 9th ed (1992) (ed Jennings and Watts), pp 27-31. There was plainly no such settled practice relating to conscientious objection. There are many countries, of which I shall mention some in a moment, which do not recognise it.
41. I do not think it is possible to apply the rules for the development of rules of international law concerning the relations of states with each other (for example, as to how boundaries should be drawn) to the fundamental human rights of citizens against the state. There are unhappily many fundamental human rights which would fail such a test of state practice and the Refugee Convention is itself a recognition of this fact. In my opinion a different approach is needed. Fundamental human rights are the minimum rights which a state ought to concede to its citizens. For the purpose of deciding what these minimum rights are, international instruments are important even if many state parties in practice disregard them. (The African Charter on Human and People's Rights, adopted in 1981, is perhaps a conspicuous example). But the instruments show recognition that such rights ought to exist. The delinquent states do not normally deny this; they usually pretend that they comply. Equally, the fact that many states openly deny this existence of a human right is not necessarily a reason for saying that it does not exist. One may think, so much the worse for them. But state practice is nevertheless important because it is difficult to assert the existence of a universal fundamental human right disavowed by many states which take human rights seriously.
42. As I have said, there are many countries which do not, or did not until relatively recently, recognise any form of conscientious objection. Those that do are not agreed on the grounds upon which it should be allowed. The Rapporteur of the Committee on Legal Affairs and Human Rights of the Council of Europe reported on 4 May 2001 on "Exercise of the right of conscientious objection to military service in Council of Europe member states" (Doc 8809 revised), paragraph 24:
43. In the United Kingdom, for example, some forms of conscientious objection were recognised in both World Wars; the practice of the tribunals which decided claims to conscientious objector status does not appear to have been uniform. Likewise in the United States conscientious objection is recognised, but the statutory grounds are more specific: the objection must be to all war and not merely to the particular war for which one is being conscripted. This ruled out people who did not object to serving in defence of their country but thought that the Vietnam War, for example, was immoral. In France conscientious objection was not recognised until 1963, after the end of the Algerian War, and in Germany it was recognised in the new 1949 constitution after the end of the Second World War, when the German Army was in abeyance. On the other hand, in many countries there is conscription and no conscientious objection.
44. What conclusions can one draw from these mixed data? It seems to me that even in Europe and the United States, the recognition of conscientious objection, sometimes as a prelude to the abolition of conscription, does not demonstrate any recognition of a principle that conscientious objectors have a moral right to be treated differently. On the contrary, I think that practice supports Dworkin's view that recognition of the strength of the objector's religious, moral or political feelings is only part of a complex judgment that includes the pragmatic question as to whether compelling conscientious objectors to enlist or suffer punishment will do more harm than good. Among the other relevant factors are the following: first, martyrs attract sympathy, particularly if they suffer on religious grounds in a country which takes religion seriously; secondly, unwilling soldiers may not be very effective; thirdly, they tend to be articulate people who may spread their views in the ranks; fourthly, modern military technology requires highly trained specialists and not masses of unskilled men.
45. I pass then from state practice to the opinions of jurists. There seems little doubt that the framers of the ICCPR and the ECHR did not think that the Conventions conferred a right to conscientious objection. That is shown by the provisions of article 8(c)(ii) of the ICCPR and article 4(3)(b) of the ECHR which speak, in a different context, of countries "where conscientious objection is recognised". That clearly indicates that the framers thought there might be state parties to the Convention in which conscientious objection was not recognised. Of course that is not by any means conclusive. The framers of the post-Civil War amendments to the constitution of the United States did not think that they were inconsistent with segregation, but the courts in the mid-twentieth century decided that they were. The broad concepts of human rights do not change in meaning: "respect for...private life" always means the area of personal autonomy which the state must concede to the individual, but each generation of judges must give its own content to such concepts. They may think that the framers of the instrument were wrong in their assumptions or that the extent of the area of personal autonomy has changed with changes in the values of society: Goodwin v United Kingdom (2002) 35 EHRR 447. Perhaps even more important, there may be changes in what is perceived to be the appropriate balance between one human right (e.g. respect for private life) and another (e.g. freedom of expression by newspapers) or the extent to which a human right needs to be qualified in the interests of good government or on other utilitarian grounds.
46. In the present case, the human right relied upon as founding a right to conscientious objection is the freedom of thought conscience and religion: article 18 of the ICCPR and article 9 of the ECHR. Although both articles give an unqualified right to hold religious opinions and to manifest that belief in "worship, observance, practice and teaching", the right to manifest a religion or belief in other ways may be limited so far as "necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others". The framers of the covenants appear to have believed, as I have said, that public safety was a legitimate reason for not allowing a religion or belief to be manifested by refusal to do military service. So the question is whether that is no longer the right view to take.
47. The changes in the nature of warfare which I mentioned earlier do not seem to me a reason for recognising an international human right to conscientious objection. They only strengthen the pragmatic reasons, in countries which have high technology armies but still have conscription, for not punishing conscientious objection. But that is a matter of policy, not principle. It is no reason for saying that a country which needs a citizen army to defend itself is obliged to put the conscience of a conscript before the needs of national defence and, perhaps as important, the principle of equality of sacrifice among citizens.
48. The notion that there is such a human right seems to be of recent origin. In LTK v Finland (1985) 94 ILR 396 the UN Human Rights Committee established under the ICCPR said flatly that "the Covenant does not provide for the right to conscientious objection". But in 1993 the committee issued "General Comment 22" on 30 July 1993 in which it tentatively changed its mind and said:
49. There are two observations to be made. First, the fact that (a) people claim a right to conscientious objection under article 18 and (b) a growing number of states concede a right to conscientious objection, does not by any means demonstrate that they recognise that such a right exists under article 18. It may show no more than that their military requirements make it sensible to tolerate some form of conscientious objection. Secondly, the statement that an obligation to use lethal force may "seriously conflict with freedom of conscience etc" does not even attempt to explain why such an obligation should be distinguished from other legal obligations which may similarly conflict.
50. The European Court of Human Rights has never found it necessary to decide whether article 9 (the equivalent of article 18 of the ICCPR) entails a right of conscientious objection but the Commission has considered the matter several times. On all the occasions when it considered that it was necessary to decide the point, it has said that article 9 does not: see, for example, Autio v Finland Application No 17086/90, (1991) 72 DR 245 referring to earlier cases. In Tsirlis and Kouloumpas v Greece (1997) 25 EHRR 198, 224 there was a single dissent from Mrs Liddy, who distinguished cases in which the action does not "actually express the belief concerned" (like chaining oneself to the railings outside Parliament) or "has no specific conscientious implications in itself" (like paying tax). I find it hard to see the principle upon which these distinctions are made: they appear to involve questions of degree. There is no reason why a religion should not require one to chain oneself to railings, not pay tax or fight a holy war and to say that such beliefs would be irrational or contrary to the public interest would seem to me to miss the point. However, Mrs Liddy gained five more votes for a similar dissent in Thlimmenos v Greece Application 34369/97, 4 December 1998, and there the matter stands.
51. Finally there is the recently adopted Charter of Fundamental Rights of the European Union (2000/C 364/01) which provides in article 10(2) that "[t]he right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right". The reference to national laws enabled the European institutions which proclaimed the Charter (the legal status of which is still undecided) to avoid defining the nature of the right but this makes it difficult to provide a coherent theory as to why the right should exist. Is it based upon particular respect for a religious or philosophical belief in the sanctity of life? In that case, it should be confined to objections, as in the United States, to all wars and perhaps only to combatant roles in the forces. Or is it more broadly based on political objection to particular operations? In that case, how should it be distinguished from other aspects of government policy? It is difficult to escape the conclusion that this provision was adopted because all the member states either had no conscription or did not foresee a situation in which it would be necessary to force deeply unwilling recruits into their armed forces.
52. If one turns to consider what the European Union considers would amount to a violation of fundamental rights by other nations, a different story emerges. On 4 March 1996 the Council adopted, pursuant to the "Third Pillar" provisions of article K.3 of the Maastricht Treaty, a joint position on the interpretation of the Refugee Convention (OJ 1996 L 63-2). Point 10 said that fear of punishment for conscientious objection should in itself be insufficient to justify recognition of refugee status. It might however amount to persecution if the punishment was discriminatory, if the conditions under which service had to be performed amounted in themselves to persecution or if they would require the applicant to commit war crimes or the like. A similar position is adopted in the current draft of a Council Directive on refugees which was approved at the Justice and Home Affairs Council on 28 November 2002 (15068/02). These documents suggest that the European Union does not accept that a failure to recognise conscientious objection is a discriminatory breach of the fundamental human rights of the objectors.
53. In my opinion, therefore, the applicants have not made out their case for saying that there exists a core human right to refuse military service on conscientious grounds which entails that punishment of persons who hold such views is necessarily discriminatory treatment. The existence of such a right is not supported by either a moral imperative or international practice.
54. This conclusion makes it unnecessary to decide whether Mr Nicol is right in saying that, for the purposes of the Refugee Convention, to apply a general law imposing significant punishment on people who have a human right to be treated differently because of their conscientious opinions amounts to persecution on the grounds that they hold those opinions, or whether, as the Secretary of State says, it is a complete answer that the Turkish authorities are not concerned with their political opinions but only with their refusal to enlist. My present inclination is to agree with Laws LJ that it would be inconsistent to say that a general conscription law which did not make an exception for conscientious objectors was an infringement of their fundamental human rights but that punishing conscientious objectors under such a law was not persecution for reasons of their opinions. The bizarre case of Omoruyi v Secretary of State for the Home Department  Imm AR 175 was different. Mr Omoruyi was not claiming that by virtue of his Christianity he had a human right to be treated differently from other Nigerians in being allowed to bury his father's body. Everyone had such a right. He was claiming that having to comply with the demands of a criminal gang was harder on him because he was a Christian. Whether or not that was the case, it did not mean that the reason why he was subjected to the demand or not excepted from the demand had anything to do with his religion.
55. I would therefore dismiss the appeal.
56. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Bingham of Cornhill. I am in full agreement with it and for the reasons which he gives I, too, would dismiss these appeals.
LORD RODGER OF EARLSFERRY
57. My noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann have explained that, until now, with only minor exceptions the relevant bodies have been unwilling to affirm the existence in international law of a right to object to military service on grounds of conscience. Those bodies have preferred, at most, to commend to states that they should recognise such a right within their domestic legal order. The reluctance to go further doubtless reflects the real difficulty of identifying the scope of any right that all states would have to recognise, whatever their circumstances. It is not obvious, for example, that the recognition in peacetime of a right to exemption from military service on grounds of conscience raises precisely the same issues as the recognition of such a right by a state which is fighting for its very survival, which, lacking more sophisticated weapons, requires all the manpower it can muster and which may not be in a position to scrutinise applications for exemption. The dilemma of the conscientious objector asserting a right to exemption in an hour of national peril is correspondingly the more exquisite.
58. The applicants do not object to performing military service in all circumstances. This only makes defining the scope of the right which they assert more problematical. In Gillette v United States (1970) 401 US 437, in a powerful opinion delivered at the height of the controversy over the selective draft for military service in Vietnam, Marshall J analysed the particular difficulties of recognising anything short of an absolute objection to military service. He drew attention to the inevitable competition between the values of conscientious objection and of equality of sacrifice, a competition that has to be resolved while bearing in mind that in practice an extensive right of conscientious objection will tend to be asserted by the educated and articulate rather than by the less fortunate members of society. States with different histories, different social mixes and different political, cultural, religious or philosophical values may legitimately differ as to how such a sensitive issue should be determined. It is hardly surprising therefore that no universal solution which all must follow has so far been identified. In these circumstances, for the reasons given by Lord Bingham of Cornhill and Lord Hoffmann I agree that the House cannot recognise the supposed core human right for which the applicants contend. The appeals must accordingly be dismissed.