The Name Of Valor: Adopting Universal Standards Of Conscientious Objection

The Name Of Valor: Adopting Universal Standards Of Conscientious Objection

“O war, thou son of hell, whom angry heavens do make their minister, throw in the frozen bosoms of our part hot coals of vengeance. Let no soldier fly. He that is truly dedicated to war hath no self-love; nor he that loves himself hath not essentially, but by circumstance, the name of valor.” – William Shakespeare, Henry VI, Part II, Act 5, Scene 2

In this now famous photograph from 1936, August Landmesser refuses to salute Hitler. He had married a Jewish woman who was killed in a concentration camp, while he died fighting in the war.

In the late winter of 1943, an Austrian peasant made a proposal to the German military: although he could not, in good conscience, take up arms for their cause he was willing to serve them as a medical orderly.[1] Germany never formally responded to his suggestion of compromise and several months later he was beheaded in Berlin. The man’s name was Franz Jägerstätter and he had been causing trouble for the Nazi government since it annexed Austria in 1938. St. Radegund, Jägerstätter’s home town of about 1,000 people, had but one citizen in objection to Germany’s annexation of Austria in 1938 – Jägerstätter himself. Later, he rejected assistance from the Nazi government designed for Austrian farmers. Despite council to submit by Bishops in the Catholic Church, Jägerstätter refused. Writing from prison shortly before his death, he said:

“These few words are being set down here as they come from my mind and my heart. And if I must write them with my hands in chains, I find that much better than if my will were in chains.”[2]

Plaque commemorating the building where Jägerstätter was sentenced to death.

Franz Jägerstätter’s life illustrates multiple truths. The first is that there are certain individuals who hold sincere, conscientious beliefs about the propriety of war. The second is that even though today he is celebrated as a martyr, he was not a popular Catholic and history’s condemnation of the Nazi philosophy did nothing to assist him during his life. Although he was acting on his religious beliefs, he was even condemned by his Church[3]. Is there a place within international law to respect the conscientious beliefs of those like Jägerstätter? Or do the wishes of conscientious objectors need to be subservient to the state for states to adequately defend themselves? Should differing cultural backgrounds play a role in the allowance of conscientious objectors, and if a culture deeply differs from Western ones, does the imposition of a Western view of free expression represent a modern form of colonialism? Do the legal precedents of vulnerable nations or international law point towards a model that could be considered universal?

This paper seeks an answer to those questions through a comparative approach. After considering the history of conscientious objection[4] to warfare and the foundation for its introduction into international law, three legal systems and cultures will be considered: the Anglo-American common law tradition, which has adapted over time to include allowances for conscientious objection, the Israeli legal tradition and culture, one which has been under constant threat for decades and yet has successfully made allowances for conscientious objection, and finally Asian legal systems that place a large premium on community involvement, but that nevertheless, as in cases such as Taiwan, can successfully accommodate the needs of the individual.

Finally, based upon foundational international law and the comparative approach described above an argument for universal acceptance of general conscientious objection is made. Along the way, the central question in the debate that emerges may be surprising to some: ‘Is it appropriate to export Western European notions of free expression to societies that are culturally Confucian?’

Laying the Groundwork for the Individual Conscious in the West

Each year on May 15th in London, United Kingdom, representative names are read aloud in honor of all those who lost their lives as conscientious objectors. One of those names is that of Maximilanus, a North African Christian, and although surely not the first conscientious objector, the oldest one recorded by history.[5] After explaining that he felt he could not serve in the Emperor’s army as a Christian, he was beheaded in the year A.D. 296. The modern incarnation of conscientious objection owes much to two European revolutions: the Protestant Reformation and the Enlightenment.

The Protestant Reformation

The very name given to the Protestant Reformation implies protest against the institutions in place at the time of that revolution. In fact, since “reformation” comes from a Latin word that means “to renew,” the term “the Protestant Reformation” literally means to renew through protest. It is generally said to have begun with Martin Luther in 1517.[6]

Martin Luther.

Prior to the Reformation, divine truth was thought to be revealed through institutions, such as the Church. Protestant teaching typically held that humans were capable of direct relationships with God and as such, could be capable of having divine truth revealed to them. Today, we might call that revealed truth a conscience. To be sure, Protestantism did not demand pacifism from its adherents, but its teachings certainly allowed seeds to be planted from some who were drawn to an increasingly large number of Protestant sects. Indeed, so thoroughly did the Reformation change the mindset of Europeans that within a century of Luther’s break with the Catholic Church, many Swiss and German Protestants broke with Luther in what came to be called the “Radical Reformation.”[7]

When the United States came into existence in 1776 and shortly thereafter enshrined separation of Church and State into its’ Constitution[8], the number of Protestant sects expanded immensely. One branch of these movements was termed ‘millennialism’ after a common belief that Jesus Christ would return to rule for a literal 1,000 years.[9] Adhering to a belief in a literal, ruling Kingdom of God, caused many of these groups to take actions to make themselves distinct from earthly Governments. Seventh-Day Adventists and Jehovah’s Witnesses are among these religious groups and although they began in the United States, they have come to have worldwide followings, largely driven by a proselytizing bent[10]. Of the twenty million worldwide Seventh Day Adventists, only about one million are in the United States; similarly, of about eight million worldwide Jehovah’s Witnesses, only about 1.2 million are within the United States.[11]

The Secular Reformation fo the European Enlightenment

The European Enlightenment of the eighteenth century was predicated on the use of reason, above all else, to instigate progress in society. The application of individual reason was preceded in important ways by the Protestant Reformation.

In late seventeenth century England, Isaac Newton would publish Principia Mathematica, among the most important writings in world history.[12] Beyond its practical scientific achievements, the discoveries of Newton laid bare a world, not determined by superstition or faith, but one that functions in a mechanical and predictable way and that those mechanical and predictable ways were capable of being discovered by curious and rational minds[13]. Contemporaneous to Newton was John Locke, whose political writings form a very important plank in the foundation of the concept of human rights. He was among several philosophers to discuss a “social contract,” in which all people were inherently equal and free, must give their consent to be governed, and possessing of rights that could never be taken away. Thomas Jefferson, heavily drawing upon (perhaps even plagiarizing) Locke, would be the most eloquent to state this inherent freedom as the “inalienable right to life, liberty, and the pursuit of happiness.” The state had become a construct of the individual, rather than the individual one of the state.

Isaac Newton.

Towards the end of the Enlightenment period, German philosopher Immanuel Kant was among the first to make a general inquiry on the period and his observations still influence how many think about the Enlightenment today,[14] through his 1787 essay, “What is Enlightenment?” “Have courage to use your own understanding! That is the motto of the Enlightenment,” was Kant’s summation. Indeed, Kant’s words are both a prophecy as well as an observation of history.

Jean-Jacques Rousseau.

Among the most revolutionary, and important in consideration of conscientious objection, of Kant’s enlightenment writings is the implied notion that freedom and progress happen at the individual level rather than at the societal level. According to Kant, there is no great blueprint for effective authority in civil structures. The only path to progress involves the freedom, and subsequent enlightenment of conscious, that comes through individual self-awareness and morality.[15]

Immanuel Kant.

A further consequence of the Enlightenment was an economic system that placed the individual, and not the State, at the center of things. This was capitalism.Capitalism would come to replace mercantilism as the dominant root of the European economy.[16] The goal of mercantilism was to maximize the wealth of the state and was a form of economic nationalism. The advent of capitalism completely obliterated this old way of thinking about economic goals, as it placed the individual at the center of an economic system’s goals and holds that by allowing the individual to pursue only their self-interest, the utility of each individual can be maximized.

Another, more direct, consequence of the Enlightenment was the French Revolution. The French Revolution had its own important connections to the development of conscientious objection as an idea.

The French Revolution

“Liberty Leading the People” by Eugene Delacroix. The 1830 painting has become synonomous with the French Revolution.

Enlightenment ideas channeled in Paris had also caused many in France to question the legitimacy of the Monarchy. The incompetence of France’s rulers following the 1715 death of Louis XIV was also a major spark[17].

After its 1789 beginning, the French Revolution would descend into orgies of violence, terror, and paranoia. Napoleon took advantage of the chaos to claim the title of Emperor in France. Other European monarchs did not look favorably upon the Revolution, so Napoleon attacked his eastern neighbors before, he believed, they could invade France.

A universal conscription system was made law in France in 1798 in order to protect France from the enemies that it had accumulated. Napoleon kept this system in place.[18] It was a radical departure from traditional European armies that had been filled with professionals. Pressing practical concerns along with a belief in the equality of all men lay behind the conscription and at its peak the French army had almost 700,000 soldiers. The success of the Grande Armée was largely due to France’s ability to overwhelm professional armies with sheer numbers. Shocked by their performance, other European leaders started to introduce compulsory conscription in their own countries[19].

Jean-Jacques Rousseau was among the most vocal opponents to professional armies and preferred conscripted ones so that all citizens can take part in the countries’ defense.[20] Later in the nineteenth century, a movement towards nation-states came into bloom in Europe and resulted in the establishment of Germany and Italy. This movement also strengthened the idea of conscription through its emphasis on nationalism.

Western Contrasts with Confucianism

Much of Asia’s culture and traditions are owed to Confucius, a philosopher that lived in China about five hundred years before Christ’s birth.[21] Since democracy was an Athenian invention, Confucius would have been unaware of it, but even if he had been, his teachings run contrary to Western ideals of the self and personal fulfillment. His concern was in how people could behave virtuously so that social order and harmony can be achieved. Human virtue leading to this relies upon each individual understanding their role in society and acting according to that role and within the confines of an established order and hierarchy.[22]


The Confucius concept of virtue also relies on the individual never placing personal beliefs above the good of society, leading to a collectivist outlook as opposed to an individual one. Indeed, it is considered both admirable and necessary in Confucian culture to suppress individual desires.

Since China was the dominant Asian state for centuries after Confucius, these ideas were spread from China to Korea, Japan, Vietnam and many other places.[23] Additionally, some countries, such as Singapore, have large numbers of ethnic Chinese as citizens.

During the second half of the twentieth century, East Asia began developing at a pace so rapid it had likely never before been seen in history.[24] The initial success of the East Asian model, a kind of state-sponsored capitalism that heavily relies on Confucian beliefs, in Singapore, Taiwan, Hong Kong, South Korea, and Japan allowed it to spread to China and Vietnam later in the century. Many observers have noticed the role that resurgent Confucianism has had on Asian development over this period. Aspects of Confucius’ teachings can be seen in high educational attainment in these countries, as well as high rates of savings and the way modern Asian societies apply Confucianism has made possible a preservation of Asian culture while economies are forged than can compete in a modern world.

Former Singapore Prime Minister Lee Kwan Yew said succinctly to Fareed Zakaria: “The expansion of the right of the individual to behave or misbehave as he pleases has come at the expense of orderly society. In the East the main object is to have a well-ordered society so that everybody can have maximum enjoyment of his freedoms. This freedom can only exist in an ordered state and not in a natural state of contention and anarchy.”[25]

Lee Kwan Yew in 1963 announcing the absorption of Singapore by Malaysia.

It is only a slight exaggeration to say that today the issue of conscientious objection in the world is one that places European enlightenment values against Asian Confucianism. Is it possible to forge a reconciliation?

Conscientious Objection in International Human Rights Law

Modern human rights originate with the drafting of the Universal Declaration of Human Rights (UDHR) after the end of the Second World War.[26] After witnessing unspeakable carnage and genocide, the United Nations’ intent was to create a global Bill of Rights. Eleanor Roosevelt chaired the committee responsible for drafting the UDHR.[27]

A statue in Washington, D.C. honors Elanor Roosevelt as the first delegate from the United States to the United Nations. Photo credit: Ron Cogswell.

Thirty articles were ultimately part of the final draft of the UDHR, but no explicit mention was made of conscientious objection. It was not an oversight. Many countries viewed conscientious objection as an affront to sovereignty and a concern to national security.[28] Despite Ms. Roosevelt’s desire that conscientious objectors be given some protection in the UDHR, not even the United States and the United Kingdom had gone very far in doing so under national laws and it was the representative from France[29] who officially requested amendments to original language proposed by the committee that equated service performed by conscientious objectors to military service.

The UDHR does, however, contain language that could be interpreted in spirit and principle to open a door for the legality of conscientious objection. Among them, the very first article of the UDHR states:

“All human beings are born free and equal in dignity and rights. They are endowed with   reason and conscience and should act towards one another in a spirit of brotherhood.”             (Italics added.)

Further, Article 3 ensures freedom of religion and Article 18 guarantees “the right to freedom of thought, consciousness, and religion.”[30]

The principles of freedom of conscience and religion traced themselves to the founding documents of the United States and the French Enlightenment. But, even these words were somewhat controversial at the time the UDHR passed.[31] Some delegates preferred that if these concepts were included at all, they be discussed in the Preamble. More importantly, no one understood these Articles to apply to conscientious objectors at the time the UDHR was drafted.

The European Convention on Human Rights (ECHR) was completed in 1950, one of the first regional agreements on human rights. The ECHR also established the European Court of Human Rights.[32] The Convention was a result of the formation of the Council of Europe, the forging of a pan-European Council to defend human rights and European values. The drafters of the ECHR limited the rights they enumerated to those already freely practiced in European democracies and intended the Convention to take its full form with the passage of time and accumulation of judicial precedence.[33] Because of this, full steps to legalize conscientious objection were not ratified, but awareness of the issue was seen in Article 4, which in part states:

“No one shall be required to perform forced or compulsory labour. For the purpose of                    this Article the term ‘forced or compulsory labour’ shall not include…any service of a military character or, in case of conscientious objectors in countries where they are           recognized.”

Delegates across Europe signing the European Convention on Human Rights in 1950.

So, the ECHR, like the UDHR offers no direct solace to the conscientious objector, surely because enough of the signatory countries opposed its’ inclusion. Today, however, the European Court of Human Rights recognizes the right of conscientious objection, but the authority stems from Article 9 of the ECHR:[34]

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in         worship, teaching, practice and observance. Freedom to manifest one’s religion or        beliefs shall be subject only to such limitations as are prescribed by law and are      necessary in a democratic society in the interests of public safety, for the protection       of public order, health or morals, or for the protection of the rights and freedoms of        others.”

The ECHR became critical to human rights law, and specifically to those interested in the rights of conscientious objectors for two primary reasons: it was the first regional human rights agreement and it was the first to contain genuine enforcement mechanisms.[35] Later regional human rights accords also failed to explicitly give rights to conscientious objectors. The Inter-American Commission on Human Rights (IACHR) only makes mention of the concept by stating the phrase, “in countries in which conscientious objectors are recognized.”[36] The term “conscientious objector” does not appear in the African Charter on Human and Peoples’ Rights (ACHR) at all.[37]

The Charter of Fundamental Rights of the European Union (CFREU), which was drafted in 2000[38], became the first human rights instrument to explicitly recognize conscientious objection as a right, and indeed, remains the only one to do so. Article 10 of the CFREU states:

“The right to conscientious objection is recognized, in accordance with national laws governing the exercise of this right.”

In this case, international law followed national law. The provision finally made its way into an international agreement because by the time the CFREU was negotiated, its signatories had already settled on national policies of recognizing conscientious objection, as the language in the CFREU makes clear.

Following the drafting of the UDHR, the United Nations maintained a Commission on Human Rights for the purposes of reporting on and exposing abuses in the world.[39] In 1987 this Commission stated that conscientious objection is a human right for the first time in a resolution:[40]

“Recognizing that conscientious objection to military service derives from principles and   reasons of conscience, including profound convictions, arising from religious, ethical, moral   or similar motives… Recommends to States with a system of compulsory military           service, where such provision has not already been made, that they consider introducing    various forms of alternative service for conscientious objectors which are compatible           with the reasons for conscientious objection, bearing in mind the experience of some     States in this respect, and that they refrain from subjecting such persons to             imprisonment.”

However, the resolution was not binding law since the Commission had no right to so promulgate.

This whirlwind of opinions, recommendations, and conflict over language came to a head in 2004. That year, two Korean citizens brought before the United Nations’ Human Rights Committee a case against their country for not respecting their rights of conscientious objection.[41] Both men were Jehovah’s Witnesses and were imprisoned for not responding to their obligations under conscription laws. The argument of the two men, Yeo-Bum Yoon and Myung-Jin Choi, was that the imprisonment violated Article 18 of the UNDHR, which guarantees freedom of conscience. South Korea argued before the Court that the provision in the UNDHR had not been understood historically to apply to conscientious objection and that the South Korean Constitution also grants the right to freedom of conscience, but explicitly states that this provision does not apply to issues of national security.[42

The Courts’ decision clarifies its interpretation of Article 18 of the UNDHR as it relates to conscientious objection. There is not an unlimited right to freedom of religion in any country, meaning that there are national laws that restrict freedom of conscience or religion and yet, are not in violation of the UNDHR. Specifically, laws necessary to protect public health or safety or the fundamental rights of others are often exempted. The burden, according to the Court, is on the State to demonstrate the necessity of laws that restrict freedom of conscience and religion and in this case, South Korea failed to demonstrate how offering alternative service would impair national security.[43] Despite the ruling against it, South Korea has so far not complied.[44]

The current state of international law in regards to conscientious objection is mixed. The European Union is the only region in the world that has explicitly granted the right.[45] However, even though international courts have read into other convention language the right to conscientious objection, enforcement has been difficult.

Conscientious Objection in Practice: Examining National Laws

Because of the difficulty in establishing enforcement mechanisms from international court rulings, national laws still carry considerable weight in the reality of whether or not conscientious objection is being recognized as a right. Although all countries cannot be surveyed for this paper, three systems will be examined that can be said to be representative of world viewpoints. The first is the Anglo-American common law tradition that has evolved to make allowance for conscientious objectors; the Israeli tradition, with Israel being a country facing constant threat; and representative Asian systems including South Korea, Taiwan, and Singapore where individual rights are generally not welcome concepts and historically a right to conscientious objection has not been recognized.

The Anglo-American Tradition

Ultimately, the Anglo-American legal system has skirted away from having to make difficult choices regarding conscientious objection, because since the era of the Vietnam War it has shown a preference for volunteer militaries. Many decisions and laws on conscientious objection still exist from before conscription ended in the United Kingdom and the United States. Even though conscientious objectors have not always been treated well, the Anglo-American tradition has tended to be more progressive than many other countries.

The first record of interaction between the law and conscientious objection in the United Kingdom was in 1757, when the Militia Ballot Act was passed to create the first military reserve system in the country. Quakers were specifically exempted from needing to fulfill the requirements imposed on other citizens due to their established pacifism.[46]

Conscientious objection was never a major concern of British life again until the First World War, which began in 1914. When the war began a debate ensued over whether Britain could achieve its aims through voluntary enlistments. Because Britain had traditionally relied on the Royal Navy, requiring smaller amounts of men than a large army, conscription had not often been a contentious topic in the country. During 1915, a scheme, called the Derby Scheme, was attempted whereby social coercion was used to encourage enough able-bodied men to volunteer for the armed forces. Close to half of eligible men declined to enlist and the Military Service Act was introduced in 1916, which finally introduced conscription.[47] The Act included a “conscious clause” whereby conscientious objectors could avoid military service.[48] In order to take advantage of the clause a draftee needed to appeal to a local tribunal and plead their case. Close to 16,000 British men appealed to these local tribunals on the basis of conscientious objection.[49] The tribunals were chosen by local politicians and always included at least one representative of the military. Further, the tribunals were public hearings, subjecting objectors to social stigma. Many records have been destroyed, so no consensus exists on the number of men the tribunals approved for conscientious objector status, but historians generally agree that the tribunals were not friendly environments and a strong bias towards patriotism existed within them. Those that were granted alternative service were generally given duties such that the tribunal was satisfied they were sacrificing in proportion to a soldier – through posting them far from home or giving low pay for the alternative work performed.[50]

British conscientious objectors in WWI at a labor camp in Scotland.

Prior to the start of the Second World War, Britain passed another conscription act to prepare. Once again, conscientious objectors had to plead their case before a tribunal, but these tribunals were much fairer than those established in the First World War. They were chaired by attorneys and no military representatives were present. It was still the case, however, that most requesting conscientious objector status were denied. Out of 60,000 applications, only 3,000 were approved unconditionally. Of the remaining 57,000, about 18,000 applications were denied for being insincere and 39,000 were offered alternative service requirements. Throughout the war, 5,000 men were imprisoned for conscientious objection after their requests to their local tribunal were denied.[51]

After the War, colonial commitments meant that the United Kingdom continued to have a conscription army. However, as these commitments wound down, conscription was ended by 1963 and has not been reintroduced since.

The independent and libertarian origins of the United States meant that normative conscription was not popular with the country at its inception. Indeed, a standing army of any kind was seen as a menace to liberty. Still, eligible men were expected to serve in a local militia and be trained for warfare in the event of a crisis.

The first national conscription that occurred in the United States was during the Civil War, which lasted from 1861 to 1865. The conscription during this period was unique in that anyone could pay $300 to hire a substitute to take their place, disproportionately placing the burden of fighting on those who were poor.[52]

Americans viewed the First World War as a European problem prior to their own entrance and few volunteered for the Armed Forces, prompting new conscription legislation in 1917. Only specific religious groups – the Amish, Mennonites, Quakers, and the Church of Brethren – were exempted and no other exceptions were made. Those refusing service were court-martialed and imprisoned.[53] Of 65,000 conscientious objectors claims, only about 7,000 were approved and close to 4,000 men were imprisoned.[54]

More tolerance was extended in the Second World War, when anyone who made a religious objection could be exempted and given alternative service that included serving as a medic or being assigned responsibilities on the home front. A total of 72,000 men applied for conscientious objector status and 37,000 of them agreed to perform alternative service, while 27,000 failed their physical and were exempted. Most of the remainder were imprisoned for refusing the alternative service they were offered or for not meeting the Draft Board’s requirements.[55]

Since statutory exemptions required a religious belief of conscientious objection, determining whether or not to grant that status to an individual usually turned upon whether that belief was religious or political[56]. Mathias Kauten, an atheist, was denied conscientious objector status and sued as a result in 1942. The case[57] made its way to the Supreme Court where his conviction was upheld. While the Supreme Court recognized that religious beliefs can take secular forms in a broad sense, the language that exempted certain potential draftees in a narrow sense meant one who belongs to an organized religion that objected to all warfare.

Another man brought a case to the Supreme Court during the Korean War, when his request for conscientious objector status was denied.[58] The man was a Jehovah’s Witness and on the basis of Kauten would seem to be eligible for the exemption. The basis of his denial was a belief by the Review Board that his beliefs were insincere. The objector had initially filed for exemption as a farmer and only later made a similar request as a religious objector. The Court ruled that in an administrative proceeding such as this, deference needs to be paid to the administrative agency and that sincerity of beliefs is an appropriate factor to consider in determining whether or not to grant the status.

The religious test for conscientious objection would survive until 1965, when it was broadened to include secular objections – but the standard of sincerity remained. In United States v. Seeger,[59] the Defendant claimed that his desire to be classified as a conscientious objector was protected by the First Amendment’s guarantee of freedom of expression. This case established the current test of granting conscientious objection status: sincerity of belief (religious or ethical) plus a generalized, and not specific, objection to warfare.

Dan Seeger, the “Seeger” in the United States v. Seeger.

Conscription was phased out in the United States in 1973 after intense opposition from many to the Vietnam War and a desire by the military to only recruit those soldiers who wanted to be in the armed forces. As a result, generalized conscientious objection has faded as a public issue.

Though conscientious objection is no longer a meaningful conversation in British and American jurisprudence, the examples of the two nations are still instructive. In large measure this is because they have historically accepted a plurality of viewpoints and are open societies. That both have been able to incorporate respect for conscientious objectors into their respective legal systems successfully demonstrates the unlikelihood that doing so opens the floodgates to conscientious objector claims.

Israel: Survivalism as a Culture

Israel became a nation in 1948 after the United Nations recommended a partition of Palestine between Jewish and Arab states.[60] Prior to the Holocaust nine million Jews lived in Europe – 60% of the worldwide Jewish population. After the Holocaust only three million European Jews remained and as time passed more and more Jews left Europe for either the United States or Israel. At the time of the creation of Israel, 630,000 Jews lived in Palestine compared to 1.1 million Muslim Palestinians. The threat that the young country faced, though, was more severe than this since neighboring Arab states were also hostile to Israel. Israel’s three primary antagonists – Egypt, Jordan, and Syria – had a combined population of twenty-three million in 1947. Israel was able to win its war for independence only by illegally smuggling huge quantities of weapons into Palestine and receiving reinforcements through strong levels of immigration to the new country. After enduring the Holocaust, many Israeli’s saw the Arab invasion as a means of perpetrating another genocide against the Jewish people. Understandably, military service in this environment was seen as a duty and moral obligation.

The May 16, 1948 edition of The Palestine Post declaring the creation of Israel.

During 1949, the government of Israel gave the authority to its military to enlist any individual it wished through conscription. Those notified were obligated to report for service. At the age of 18 all Israeli citizens are presumed obligated to join the military.[61] The Defense Services Act of 1986 establishes both the guidelines for conscription as well as possible exemptions. Article 36 states that the Israeli Defense Minister can grant exemptions at his discretion and Article 40 provides for religious exemption.[62] To fulfill these requirements the military itself has established review boards to consider claims of conscientious objection to military service. If not granted, the individual is still subject to prosecution.

Israel has experienced incomparable threats to its existence since its founding. That the country has been able to integrate a measure of respect for conscientious objectors is profoundly meaningful, even if Israeli protections are somewhat short of other nations and exists judicially and not legislatively. Israel’s example powerfully demonstrates that states need not choose between security and human rights.

Asian Concepts of Community: Singapore, South Korea, and Taiwan

The end of the Second World War marked a new phase for Asian nations, as they repelled Japanese invaders and transitioned from colonial rule. The three countries from Asia examined in this section – South Korea, Singapore, and Taiwan – all owe their modern form to the volatile period after the War.

South Korea was divided along the 38th parallel for administrative reasons after the War, with the Soviet Union responsible for the area north of the dividing line and the United States south. Following the Korean War, this division became permanent and left North and South Korea in a perpetual war. North Korea has shown an historical unpredictability and a near fetishism of its military. Currently, North Korea’s regular army stands at 1.2 million soldiers with 7.7 million additional soldiers in reserve.[63] With a population of twenty-five million, that means more than a third of the entire population is connected to the armed forces, and two-thirds of all males. The situation further escalated in the 1990s when North Korea tested a nuclear weapon. Under the constant strain of potential annihilation, South Korea has a cultural and legal expectation that all eligible men perform service in the military. Alternative service is not an option in South Korea. About 80% of all conscientious objectors are Jehovah’s Witnesses.[64] The religion has 100,000 adherents in the country. Many traditional “peace churches” allow for individual conscious in cases where the government makes no allowance for pacifism,[65] but Jehovah’s Witnesses do not. Beyond the actual prison sentences, the plight of conscientious objectors in Korea is made more difficult by social stigma and a felony record when released.

The headquarters of Jehovah’s Witnesses in South Korea.

Singapore was a part of the British Empire and owes its mixed ethnicity of Chinese and Malay populations to that history. Much of the State’s success in modern history is owed to its Prime Minister following independence in 1959, Lee Kuan Yew[66]. Since Singapore was a small nation with no natural resources, it was initially believed that it would be most successful as a part of Malaysia. Ethnic strife doomed the merger between the countries, as Malaysia was protective of the fact that roughly 50% of the Malaysian population was ethnically Malay and the merger with Singapore shifted Malays to being a minority. Preferential laws for Malays were passed and by 1965 Singapore was independent again with no military, a small population, and no natural resources. Yew felt strongly that a military was needed to protect Singapore and that all residents of Singapore – whatever their ethnicity – needed to feel a sense of patriotism in order to make the new country work[67]. The National Service Act of 1967 made military service compulsory for all male eighteen year old citizens, with a requirement to serve in the reserves until the age of forty. There are no allowances for conscientious objection.

Modern Singapore. Rising from almost nothing, it is now one of the richest cities in the world.

Following the victory of Chinese Communists in mainland China in 1949, Republican forces fled to Taiwan and established a government. China still claims the island as its own and refers to it as Formosa. Because of Chinese claims, Taiwan is the largest nation not to be a member of the United Nations. For many years Taiwan’s conscription system functioned in a similar manner to many other Asian nations: All males were required to perform military service at the age of eighteen, unless they had a medical deferment or were incarcerated. Failure to report was punishable with a prison sentence of six months to five years. Taiwan changed its law in 2000 to allow for conscientious objectors, although they define that term quite narrowly. A conscientious objector must belong to a recognized, pacifist religious organization and have been a member for at least two years when applying for conscientious objector status. On average, Taiwan drafts 17,000 young men into the armed forces each year and since 2000 only 71 conscientious objector applications have been received by the government.[68] All of them have been approved, with sixty applications coming from Jehovah’s Witnesses and eleven coming from Buddhists.[69]

Soldiers stand guard at a Taiwan memorial to Chang Kai-Shek.

The Burdens of Community Versus the Burdens of Conscience

What is and is not a cultural and societal expectation varies considerably. Tolerance is an undeniably critical component of any international human rights system, although the limits of tolerance when confronted with intolerance is difficult to precisely define. In the case of conscientious objection, it is possible to establish international guidelines to protect the freedom of expression of minority groups while not endangering the admirable goals of sovereign states.

Of the 193 countries belonging to the United Nations, thirty-six outlaw conscientious objection; however, currently only five of those thirty-six nations imprison conscientious objectors.[70] Those five nations are Eritrea, South Korea, Singapore, Turkmenistan, and Turkey. The fact that only 2.6% of all nations in the world feel compelled to imprison conscientious objectors is one powerful demonstration that nations from a variety of cultures have been able to make some accommodation to the dictates of individual conscious. Granted, the other thirty-one nations that outlaw conscientious objection but do not enforce this legal provision only do so out of the needs of convenience, needs that may change as events unfold. But, in the course of ordinary events, no necessity is seen in most nations in imprisoning conscientious objectors.

The identity of conscientious objectors is also important to identify, since understanding who claim conscientious objection can help determine if granting the status is a threat and the relative number of citizens in a country that may attempt to seek that status. Overwhelmingly, these objectors belong to the religious group, Jehovah’s Witnesses[71]. Jehovah’s Witnesses refuse to participate in military service because they believe they are citizens of God’s Kingdom and not of any government on earth. They also believe, quite rationally, that since their movement is worldwide, they would likely be fighting each other by participating in conflicts between nations.[72] Although Jehovah’s Witnesses make up a portion of Eritrea’s conscientious objectors, details about the number and type of conscientious objectors in that country are not easily obtainable[73]. Of the remaining four countries that imprison conscientious objectors, Jehovah’s Witnesses make up about 70% of the total[74]. Turkey is the only one of the four countries in which Jehovah’s Witnesses do not make up the majority of imprisoned objectors.

What is gained by imprisoning members of a religious group or secular pacifists for not fighting in the military? Two general reasons are typically given and neither reason is completely without merit. The first reason is that nations need to defend themselves and since all individuals benefit from the defense of the nation, all individuals should take part in that defense. Making exceptions for some people could lead to ever greater numbers of citizens to choose not to participate in their own defense, thus making nations who are already vulnerable, more so. The second reason is that the shared experience of serving the nation can build patriotism and play a role in building a state. This was seen most clearly in Singapore, where a country was forged from multiple ethnicities. Indeed, Singapore issued a memorandum to the Human Rights Council[75] in which it stated its opposition to laws establishing conscientious objection due to, “the right of a state to preserve national security,” and the belief that “allowing individuals to be excused from military service would compromise the concept of collective responsibility.”[76]

Evidence from alternative service programs around the world illustrate that the fear of ever increasing numbers of conscientious objectors is unfounded. Taiwan serves as a perfect example of why the fear is unfounded. In a country with 17,000 recruits annually, only seventy-one have ever applied for conscientious objection.[77] It must be granted that Taiwan limits the program to those with religious objections, but the choice of the Taiwanese government to honor those objections has been an important step forward. Is there any evidence that expanding the pool of eligible conscientious objectors would create the proverbial slippery slope of large numbers of applications? It would be unintelligent to define an alternative service program too broadly so that large numbers of potential soldiers would easily evade their responsibilities. It is appropriate for authorities to ask for some show of sincerity as well as assign alternative service to those granted status. What is a fair measure of “sincerity”? One method could look towards the length of time an individual has held their claimed beliefs as well as evidence from activities in their communities. For most cases, this may be sufficient. It would be unwise, however, to automatically assume insincerity in recent converts to a religion or secular philosophy. Measures of sincerity are subjective and nothing prevents qualified psychologists from interviewing professed conscientious objectors and making a recommendation on their sincerity based upon the totality of the evidence.

It should also be noted that if the alternative service is of a similar length and hardship to the individual as military service, then no true incentive exists to refuse induction to the armed forces solely on the basis of selfishness or apathy. With people willing to be publicly shamed and spend significant amounts of time imprisoned, it is obvious that some individuals genuinely do hold beliefs contrary to warfare. These beliefs have not endangered the national security of the vast majority of nations.

Alternative service can also promote social cohesion and civic responsibility in the same way military service does. Common civil service obligations include serving as a medic, working in non-profit organizations, or serving in development assistance abroad. As a representative of the government, civil service builds cohesion and responsibility in forms very similar to serving in the military and assigning these tasks to conscientious objectors makes a great deal more sense than imprisoning them. This is so much the case that nations actually work against their own interests by not allowing alternative service for conscientious objectors.

It can be seen, then, that it is possible to lay down broad requirements for granting conscientious objector status universally, while allowing for local modifications if required. All conscientious objectors should need to prove the sincerity of their beliefs by explaining their basis and how long they have held the positions that they do. It should also be permissible to assign alternative service to those granted the status.

The Grand Illusion

It can be shown, then, that granting rights to conscientious objectors does not impair the security of nations or inhibit cultural cohesiveness.

A final objection to provisions for conscientious objection, and one that overwhelmingly lurches over the entire discussion, is that the concept of individuality inherent in a claim of conscientious objection is an intrinsically Western view of individuality and as such should not be imposed on other nations. Asian nations, in particular, that owe much of the foundation of their cultures to Confucianism are at odds with Western concepts of individuality. Confucianism places a large emphasis on respect for elders as well as social and cultural superiors. It also stresses communal activities and loyalty. Could it be that proponents of a universal standard of conscientious objection are actually attempting to impose a world-view developed in the Protestant Reformation and European Enlightenment on peoples that prefer a Confucian world view? Is this not intellectual colonialism?

Colonialism is rightly viewed today as immoral and understandably many keep watch for subtle forms of colonialism in the West.[78] However, denying rights to conscientious objectors on this basis mandates the argument that international human rights in totality are enforced colonialism[79]. Natural law traces its origin to the Roman Empire, when the observation was made that there are certain laws almost everyone obeys. Later, what is considered to be human rights today was spread by means of the American and French Revolutions. The concept that everyone is entitled to certain protections simply on the basis of being alive is very much a Western concept. Believing that the rights of each person are dependent upon local custom and culture undermines the very foundation of international human rights. Just as an American has the right to practice religion freely, so does someone who is Chinese, Russian, or Brazilian. If one fails to view the world in this context, then they implicitly or explicitly view the nation-state as what divides humankind.

The 1937 French film La Grande Illusion[80] dealt specifically with the belief that the national boundaries are what separate one person from the next.[81] The film follows prisoners of war held by Germans in the First World War. Surprisingly, the captives do not naturally make divisions among themselves based upon their nationality. Instead, each person is most comfortable with those from similar economic backgrounds rather than national backgrounds. The “Grand Illusion” of the film is two-fold: the illusion that war is a solution to societal, political, or cultural problems and the illusion that what divides people is their nationality.

Each individual must decide for themselves whether war or specific wars are moral ventures. Most people would certainly agree[82] that at least some wars are necessary and that some wars throughout history were worth fighting.[83] Others do not, and they are free to hold that viewpoint so long as the world recognizes that freedom of conscience and religion are rights granted to humans automatically upon birth and vested when old enough to make informed decisions. Ultimately, whatever can be said of the Nazi resister, the American peace activist, the South Korean Jehovah’s Witness, or the Turkish Islamist, they are all human beings with natural rights. Believing to the contrary is nothing more than an illusion.



[1] Peter Popharn, “Austrian Farmer Executed for Defying Nazis on Path to Sainthood,” The Independent, Oct. 26, 2007, available at

[2] Id.

[3] Both Nazism and Catholicism ran strong in Bavaria and Austria. The first international agreement of the Nazi Government was with the Vatican, in which the Vatican recognized Adolf Hitler’s sovereignty in political affairs and Adolf Hitler recognized the Pope’s supremacy in religious affairs for Catholics. The Anschluss (German annexation of Austria) was endorsed by Austrian Cardinal Theodore Innitzer and although 8% of the Austrian population was excluded from voting on the Anschluss because they were deemed to be wholly or partially Jewish, of those that did vote 99.7% supported the integration of the two countries. John Cornwell wrote in 1994’s Hitler’s Pope that an obsession with Papal supremacy, anti-semitism, and anti-Communism caused the Catholic Church to largely be swept along with Nazism. Franz Jägerstätter would have genuinely been alone politically, religiously, and socially by taking the stand he did.

[4] This paper limits its treatment of conscientious objection to both objection to military involvement as well as to general avoidance of warfare. However, individuals may conscientiously object to participating in many activities besides warfare and individuals may selectively object to warfare – that is conscientiously object to some wars, but not others. Because of the paper’s limitation to general conscientious objection, there is an intimate link between the conscientious objection described in this paper and conscription. Indeed, without conscription there is little need to ever address generalized objections to warfare except in cases where an individual’s belief system changes while in the military.

[5] OHCHR, Conscientious Objection to Military Service, at 2 (2012). Available at

[6] Erwin W. Lutzer, Rescuing the Gospel: The Story and Significance of the Protestant Reformation, at 32, (1st Ed., 2016).

[7] Lutzer at 63.

[8] The United States remains among the few countries to enshrine the separation of Church and State into its Constitution, which is enunciated in the First Amendment to the Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

[9] Sydney Ahlstrom, A Religious History of the American People, at 478 (2nd Ed., 2004).

[10] Based upon church records of each organization, the distribution belonging to each church is as follows. Seventh Day Adventists: Africa, 32%; Asia, 23%; North America, 22%; South America, 21%; Eastern Europe, 2%; and Western Europe, 1%. Jehovah’s Witnesses: North America 32%, South America, 21%; Africa, 17%; Western Europe, 13%; Asia, 10%; and Eastern Europe, 7%.

[11] The Pew Research Center, The Global Religious Landscape (December 18, 2012), available at

[12] Andrew Janiak, Newton as Philosopher, at 3, (1st Ed., Cambridge University Press, 2008).

[13] It would not be unmerited to consider Principia Mathematica as one of the greatest, and perhaps the greatest, accomplishment of the human mind. Among the largest of these accomplishments was the enunciation of the law of universal gravity, where Newton showed using geometric proofs that the gravity of the earth and the sun work equivalently on the moon and other planets as it does to objects on earth.

[14] Immanuel Kant, Basic Writings of Kant, at 133 (1st Ed., 2001).

[15] Kant at 140.

[16] Jurgen Kocka, Capitalism: A Short History, at 87, (1st Ed., 2016).

[17] Louis XIV died in 1715, after which Louis XV reigned until 1774. During this reign, the French economy operated on a boom-and-bust cycle thanks in part to the Finance Minister John Law. After Louis XV’s death, French debt would be increased further from assisting the American Revolution.

[18] Andrew Roberts, Napolean: A Life, at 499, (1st Ed., 2010).

[19] The Prussian army, for example, developed a reserve system drawn from conscription to be trained and called upon in warfare. This system was one of the critical factors of success in Prussia’s later victory in the Franco-Prussian War.

[20] Gottlieb at 240.

[21] T.R. Reid, Confucius Lives Next Door: What Living in the East Teaches us About Living in the West, at 32. (1st Ed., 1999).

[22] Id at 210.

[23] Rhoads Murphey, A History of Asia, at 91. (7th Ed., 2013).

[24] An East Asian Model of Economic Development: Japan, Taiwan and South Korea, by Paul W. Kuznets. April 1988. Economic Development and Cultural Change, Vol. 36, No. 3, April 1988.

[25] Justin Wm. Moyer, “How Lee Kwan Yew Made Singapore Strong,” The Washington Post, March 23, 2015.

[26] Jeremy K. Kessler, “The Invention of a Human Right: Conscientious Objection at the United Nations, 1947-2011,” Columbia Human Rights Law Review, 44 (Spring, 2013).

[27] Id.

[28] Kessler at 759.

[29] H. Takemura, International Human Right to Conscientious Objection to Military Service and Individual Duties to Disobey Manifestly Illegal Orders, at 19-20 (1st Ed., 1980).

[30] UN General Assembly, Universal Declaration of Human Rights, December 10, 1948, Article 18.

[31] Johannes Morsink, The Universal Declaration of Human Rights: Origin, Intent, and Drafting, at 38 (1st Ed., 1999).

[32] Christopher D. Decker and Lucia Fresca, “The Status of Conscientious Objection under Article 4 of the European Convention on Human Rights,” New York University Journal of International Law, 379 (2001).

[33] Id at 386.

[34] Marie-France Major. “Conscientious Objection and International Law: A Human Right,” Case Western Reserve Journal of International Law, 24 (1992).

[35] Decker and Fresca at 385.

[36] Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969, available at:

[37] Organization of African Unity (OAU), African Charter on Human and Peoples’ Rights (“Banjul Charter”), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), available at:

[38] Kessler at 781.

[39] In 2006 the Commission became the United Nations Human Rights Council.

[40] U.N. Doc E/CN.4/1987/60.

[41] Yoon & Choi v. Republic of Korea, Comm. No. 1321-1322/2004, Rep. of the Human Rights Comm., Nov. 3, 2006.

[42] Constitution Art. 19, 47 (S. Korea).

[43] Yoon and Choi.

[44] Yoon Min-sik and Ock Hyun-ju, “Is South Korea Thawing to Conscientious Objection?, Korea Herald, December 19, 2016.

[45] Matthew Lippman, “The Recognition of Conscientious Objection to Military Service as an International Human Right,” California Western International Law Journal, 21, Article 3 (1990).

[46] Collins at 10.

[47] John Keegan, The First World War, at 209 (1st Ed., 1999).

[48] Id.

[49] Id.

[50] Holly Wallis, “WWI: Conscientious Objectors who Refused to Fight,” The BBC (May 15, 2014). Available at

[51] Id.

[52] James Ford Rhodes, History of the Civil War, 1861-1865,at 179, (2nd Ed., 2016).

[53] Keegan at 312.

[54] Gail White Sweeney, “Conscientious Objection and the First Amendment,” Akron Law Review, 14 (1981).

[55] PBS, The Perilous Fight (2003). Available at

[56] While generally true, this statement is not true in the strictest sense. Because Jehovah’s Witnesses thought of themselves as “soldiers of god,” the Draft Boards generally used this as evidence that the group was not opposed to all warfare and that their objection was selective in nature. As is to become a recurring pattern in the imprisonment of conscientious objectors, the vast majority of those jailed in the United States during WWII for claiming conscientious objection status were Jehovah’s Witnesses.

[57] United States v. Kauten, 133 F.2d 703 (1943).

[58] Sicurella v. United States, 348 U.S. 385 (1955).

[59] United States v. Seeger, 380 U.S. 163 (1965).

[60] Daniel Gordis, Israel:  A Concise History of a Nation Reborn, at 196 (1st Ed., 2016).

[61] United Nations Human Rights Office.

[62] Basic Law: The Knesset, 1993, S. H. 40.

[63] Georgia McCafferty, “Anniversary Parade Provides Rare Glimpse into North Korea’s Military Might,” CNN (Oct. 10, 2015). Available at

[64]Amnesty International, South Korea: Sentenced to Life, May 2015, Available at

[65] The leaders of Seventh Day Adventists wrote in 2012 in the organizations journal, Spectrum: “So should an Adventist young adult voluntarily enlist in military service? Many do for a variety of valid reasons: patriotism, belonging, challenge, education and training, job, pay and benefits, travel and adventure, independence. The vast majority of Adventists in uniform train to use weapons as combatants. This should not come as a surprise. In most nations there are no alternatives.”

[66] Singapore may perhaps be the most successful example of development in world history. According to the World Bank, when separation from Malaysia occurred in 1965, the average income for a Singapore citizen was about $500, while it is $85,000 today. By comparison the current world average income is $15,700 compared to $3,200 in 1965.

[67] Among the many quotes of the famous Yew were “In the East, the main object is to have a well-ordered society so that everybody can have maximum enjoyment of his freedoms. This freedom can only exist in an ordered state and not in a natural state of contention and anarchy.”

[68] Peace News, “Taiwan – First Asian Country to Recognize Conscientious Objection,” (2003). Retrieved at

[69] Id.

[70] Amnesty International, South Korea: Sentenced to Life: Conscientious Objectors in South Korea, at 29 (May 13, 2015). Available at

[71] Jehovah’s Witnesses have been involved in many significant legal victories advancing human rights including the right to refrain from saluting the flag and choosing medical treatment in the United States as well as suffering while refusing to participate in the military in places such as Nazi Germany, the Soviet Union, Rwanda, and Malawi.

[72] The Watchtower Bible and Tract Society, Why Do Jehovah’s Witnesses Not Go to War?, (Jul. 1, 2008). Available at

[73] Eritrea has long been hostile with neighboring Ethiopia. Military service terms are often indefinite in practice and have created a significant number of refugees fleeing the country.

[74] Based upon data from Amnesty International, Jehovah’s Witnesses comprise 80% of South Korean conscientious objectors, one-quarter of Turkey’s conscientious objectors, and all of Singapore’s and Turkmenistan’s conscientious objectors.

[75] Singapore’s Permanent Representative to the UN Commission on Human Rights, “Civil and Political Rights, Including the Question of Conscientious Objection to Military Service,” E/CN.4/2002/188 (2002).

[76] Singapore’s letter was co-signed by representatives from China, Bangladesh, Botswana, Egypt, Eritrea, Iran, Iraq, Lebanon, Myanmar, Rwanda, Sudan, Syria, Tanzania, Thailand, and Vietnam.

[77] Peace News, “Taiwan – First Asian Country to Recognize Conscientious Objection,” (2003). Retrieved at

[78] Loubna El Amine, “Are Democracy and Human Rights Western Colonial Exports? No. Here’s Why,” The Washington Post, April 2, 2016. Available at

[79] This is not merely an academic construct, but a practical one debated in the “real world.” Loubna El Amine stated in the April 2, 2016 edition of The Washington Post: “Some academics and public intellectuals who study non-Western societies, worried about imposing Western values, have expressed concern about the use of categories such as human rights and liberal democracy. They have instead favored drawing on non-Western societies’ own intellectual traditions and lived experiences. Thus, the academic debate about the form of government that China should adopt has focused on drawing from the ideals of Confucianism.” Such an approach as the one described here must rely on the morally relativist position that each governmental system and action must be understood in the context of local tradition and history and cannot be judged on its own merits. This is wholly incompatible with any potential human rights regime that is universal.

[80] La Grande Illusion was co-written and directed by Jean Renoir, the son of impressionistic painter Pierre Auguste Renoir. One character in the movie is quoted as saying to another: “You were born in Wertemburg and me in Paris, but that does not prevent us understanding each other.” Brian Eggert’s review of the film noted, “the film acknowledges the chimerical pursuit of connection through official borders, national reconciliation, social classes, progress, race, hatred – all grand illusions that at once help people organize their lives, but also separate them from each other through false perimeters and emotional prejudices.”

[81] Brian Eggert, “Grand Illusion,” Deep Focus Review (Jan. 20, 2009). Available at

[82] The Council on Foreign Relations estimated through surveys in 2009 that about 70% of Americans and 60% of people globally agree with the statement that the UN has the responsibility to authorize and use force to protect people from Human Rights violations.

[83] The Council on Foreign Relations, Public Opinion on Global Issues, Chapter 3: “World Opinion on Violent Conflict (Aug. 23, 2012). Available at


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