V.Stefanovich: Law on alternative service doesn’t live up to expectations of human rights community

Deputy chairman of the Human Rights Center “Viasna” finds the law prejudicial to people who refuse to perform military service for reason of conscience, and points at the main problems of the bill.

The problem of the lack of practical implementation of the possibility of replacing the regular military service with an alternative one, as guaranteed by Article 57 of the Constitution of the Republic of Belarus, has more than twenty years of history – since the adoption of the Constitution in March 1994, which provided for such an opportunity. This problem has been highlighted by the Constitutional Court, civil society activists and human rights organizations. In 2004, a draft law on alternative service was introduced for consideration to the House of Representatives by MP Uladzimir Navasiad, but was rejected by parliament.

There have been cases of criminal prosecution for draft evasion of persons who claimed their right to alternative service and the inability of military service for conscientious objection.

It should be noted that the protection of the state in case of external aggression is one of the responsibilities of citizenship. However, human rights groups have always proceeded from the fact that this duty is not absolute and must take into account such rights as freedom of conscience, opinion and beliefs, freedom to freely uphold them. No one can be forced to renounce their beliefs. These rights are reflected in our Constitution.

According to Article 57 of the Constitution, the protection of the Republic of Belarus is the obligation and sacred duty of a citizen of the Republic of Belarus. Types of military service, as well as grounds and conditions for exemption from military service or its replacement by an alternative one are determined by law.

The draft law “On Alternative Service”, which provides for the practical implementation of this constitutional provision is currently in the House of Representatives.

After reading the text of the bill, I would like to make a few observations on the proposed concept of alternative service.

First of all, I would like to emphasize that the proposed law does not live up to expectations of the country’s human rights community, being, in our opinion, discriminatory against people who refuse to perform military service on grounds of conscience.

In this connection, I will focus on the main problems of the bill.

According to Article 3 of the draft law, alternative service may be claimed by males between 18 to 27 years old, who are eligible to be called up for military service, service in the reserve, fit for health and physical development to perform military service, upon personal request stating that taking of the military oath, carrying weapons or direct involvement in the production and maintenance of weapons, ammunition and military equipment is contrary to their religious beliefs to the extent that it is impossible to do military service.

Thus, the sole basis for the replacement of military service with an alternative one, according to the above article, are the religious beliefs of the individual. It should be noted that taking the military oath, carrying weapons or direct involvement in the production and maintenance of weapons may be contrary not only to their religious beliefs but also other convictions on the grounds of conscience. For example, a person may refuse to perform military service in connection with political and ethical motives, being a convinced pacifist.

Article 8 of the International Covenant on Civil and Political Rights, which prohibits forced labor, provides that the concept of forced labor does not include “any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors.” Thus, the Covenant provides for the possibility of replacing military service for political and religious beliefs, which is certainly wider than purely religious beliefs.

Adoption of the bill in the proposed wording could lead to the fact that the persons who will refuse to perform military service on grounds of conscience, but not religious beliefs, will be denied an opportunity to perform the alternative service, and in case of refusal to perform military service, they risk be punished with criminal liability for draft evasion. In this case, we may face violations of the rights of individuals to freedom of opinion and the right to hold such beliefs, which is an example of discrimination on the basis of opinion.

Another significant disadvantage of the bill in terms of its compliance with international norms of human rights is the unreasonably longer period of alternative service in comparison with regular military service.

It should be noted that the original text of the bill proposed 30 months of alternative service for persons without higher education, and 20 months for persons with a degree. However, during the hearings and vote on the bill, the House of Representatives decided to change to extend the period of alternative service to 36 and 24 months, respectively. Probably, the deputies came to the conclusion that the increase in the period of alternative service would be a reliable means of testing the sincerity of conviction of the person who applied for replacement of military service.

It should be recalled that, in accordance with the Law of the Republic of Belarus “On Military Duty and Military Service”, military service is carried out in several forms and provides for the following terms of service set out in Article 45 of this Law:

for military personnel without a degree performing military service – 18 months;

for military personnel with a degree performing military service – 12 months;

for military personnel trained in the military departments or faculties for junior officers who have passed the established examinations and performing military service – 6 months;

for soldiers performing officer military service by conscription – 12 months.

The law provides for another type of service for persons subject to compulsory military service – service in the reserve.

This kind of service is compulsory for citizens liable to be called up for military service by serving in the military units, other organizations of the Armed Forces or transport troops of the Republic of Belarus in training sessions in order to obtain a military profession without retirement. This type of military service is designed for citizens in case of absence of a need for regular conscripts in the manner prescribed by the President of the Republic of Belarus.

The period of this type of service, in accordance with Articles 62 and 63 of the Law, ranges between 300 to 850 training hours (depending on the military profession) in the first year and up to 250 hours of training in the second and third academic years. For those without higher education, the period of service in the reserve is three academic years, for persons with higher education – two academic years, and for persons trained in the military departments of universities – one academic year. In simple words, the service in the reserve is military training for a short period of time (about a month) per each academic year. The remaining time spent at the place of residence.

If we compare the periods of regular military service with the proposed terms of alternative service, we can see that the latter are twice as much as that of military service. Meanwhile, the length of alternative military service is not justified by this bill. Article 26 of the Covenant prohibits all types of discrimination. However, as repeatedly stated by the United Nations Human Rights Committee, any differential treatment should be based on reasonable and objective criteria. In this case, it seems that the only criterion for a greater length of alternative service in comparison with other types of military service is only a need to test the sincerity of such beliefs. How else could one explain why the person who refused to perform military service on grounds of conscience would be much more unfavorable and worse conditions as compared with those who do not have such beliefs or were enlisted for service in the reserve? In contrast, the person who will perform alternative service will be outside their residence, will not receive their normal pay in the workplace, and will get an allowance of a certain amount, which will be approved by the Council of Ministers.

Article 8 of the Covenant suggests States Parties may require service of a military character or, in case of refusal to perform such service on grounds of conscience – alternative national service, provided that the service is not discriminatory.

It seems to me that a doubling of the period of alternative military service, as compared with the terms of military service, as well as its significant excess in comparison with the terms of service in the reserve, is discrimination against those who will claim the replacement of military service with the alternative one on the basis of their views and beliefs. This is a violation of Article 26 of the Covenant. It should be noted that the same conclusion was reached by the UN Human Rights Committee in the Foin v France case (№666 / 1995), who recognized the length of service constitutes discrimination on the basis of opinion and a violation of Article 26 of the Covenant.

The terms of alternative service should not be punitive in nature and especially should not lead to forced, in fact, violent abandonment of the person’s convictions.

Human Rights Center “Viasna”