Sarah Paulsworth, University of Pittsburgh School of Law '12, writes about the absence of alternative military service in Azerbaijan and of protections afforded to conscientious objectors (COs) under international law...
The Imprisoned Activist and condition of CO's in Azerbaijan
On March 4, 2011 well-known Azerbaijani activist, former parliamentary candidate Bakhtiyar Hajiyev was arrested for evading obligatory military service and sentenced to one month of pre-trial detention. According to a handwritten letter [Azeri] he managed to have delivered to friends from his place of detention, Hajiyev was beaten, verbally abused, threatened with rape and denied medical attention in early stages of his arrest. In his letter, Hajiyev also announced he was starting a hunger-strike (which has since been called off) and implied that he may be suicidal. Hajiyev had previously asserted to law enforcement and military officials, who have been harassing him since November 2010, that he wished to exercise his right to perform alternative service, in lieu of traditional military service, consistent with Azerbaijan's Constitution. Hajiyev's continued detention highlights serious shortcomings in Azerbaijan's legislation related to its compulsory military service and COs.
COs are individuals who due to religious or other beliefs refuse to perform traditional military service. COs include those who object on religious grounds, like Jehovah's Witnesses, and those like Hajiyev who object for other reasons, such as pacifism. In addition to Hajiyev's case, there are a number of other recent incidents where conscientious objectors have been detained and even imprisoned in Azerbaijan. According to religious freedom watchdog Forum 18, on January 25 of this year Azerbaijan's Supreme Court rejected an appeal of a nine-month prison sentence for Jehovah's Witness Farid Mammedov, who was prosecuted for evading military service and is now serving his sentence in a labor camp. The Supreme Court upheld a lower courts prosecution of Mushfig Mammedov (unrelated to Farid Mammedov) in a similar case in December 2010. Mushfig Mammedov and Samir Huseynov, also prosecuted for military evasion, have filed a complaint with the European Court of Human Rights (ECtHR) (Application 14604/08).
Legal situation for COs in Azerbaijan
In Azerbaijan, all male citizens of between the ages of 18-35 must serve between one and one-and-a-half years of military service unless they are deemed physically or mentally unfit for service. However, according to Article 76(II) of Azerbaijan's Constitution [PDF, Azeri], "If beliefs of citizens come into conflict with service in the army then in some cases envisaged by legislation alternative service instead of regular army service is permitted." Parallel with this, freedom of conscience for everyone is guaranteed under Article 48 of the Constitution. Those accused of evading military service in Azerbaijan are prosecuted under Article 321 of Azerbaijan's Criminal Code, which provides for up to a two-year prison term in peacetime for evasion and a three to six-year prison term when the nation is at war.
Prior to 2002, the Constitutional provision on alternative service was not present; however, Azerbaijan added it consistent with the conditions of its accession into the Council of Europe (COE). Specifically, the Republic of Azerbaijan undertook the obligation [PACE opinion 222] before the COE to adopt legislation on alternative service and pardon all COs. Although Azerbaijan did alter its Constitution, more definite steps to clarify who qualifies for alternative military service, under what circumstances, and what alternative service entails have not been forthcoming. Azerbaijan's law on military service ["Hərbi Xidmət Haqqında" Azərbaycan Respublikasinin Qanunu, in Azeri] contains no provisions on alternative service, nor is alternative service envisaged in separate legislation. In the interim, the prosecution and persecution of COs, including Hajiyev, has persisted, leaving Azerbaijan in breach of its obligations before the COE and also the broader international community for a decade.
Azerbaijan's prosecution of COs contravenes the right to freedom of conscience, which is enshrined in a number of international human rights instruments that Azerbaijan has ratified, including Article 18 of the Universal Declaration of Human Rights (UDHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). In the past, some legal experts looked to ICCPR Article 8 and concluded that obligatory military service for COs was lawful, since Article 8 prohibits forced labor but not in the context of "[a]ny service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors." However, in considering the cases of two COs from South Korea (CCPR/C/88/D/1321-1322/2004) the UN Human Rights Committee (UNHRC) said Article 8 "neither recognizes nor excludes a right of conscientious objection." It therefore decided, based on ICCPR Article 18, that the conviction and sentencing of a CO "amounts to a restriction on their ability to manifest their religion or belief." Furthermore, in UN Human Rights Commission Resolution 1998/77 the UNHRC reminded States with obligatory military service to set up a system of alternative service for COs that is "of a non-combat or civilian character, in the public interest and not of a punitive nature." On the basis of these human rights instruments, and UN decisions and resolutions, the continued prosecution and persecution of Bakhtiyar Hajiyev, and other people like him, who seek to perform alternative service in lieu of traditional military service, is clearly a breach of Azerbaijan's obligation before the international community to ensure freedom of conscience.
Azerbaijan's prosecution of COs also contravenes Article 9 of the European Convention on Human Rights (ECHR), which encompasses the right to freedom of conscience. As member of the COE, Azerbaijan has a positive obligation to respect and uphold the rights envisaged in the ECHR. Furthermore, the COE requires new member-states with obligatory military service, including Azerbaijan, to implement legislation allowing for alternative service for COs. Azerbaijan unequivocally undertook this obligation during its accession. In addition, pursuant to PACE Recommendation 1518, the Assembly sought to have the Committee of Ministers compel other (older) COE members to adopt legislation allowing conscientious objectors to be exempt from compulsory military service and put in place a system of alternative service.
Europe's Problematic Jurisprudence
Interestingly, despite the protection afforded to COs in both international and European human rights instruments, the ECtHR and its now defunct gatekeeper, the European Commission on Human Rights, have been less than clear on the issue of rights afforded to COs. This has seriously undermined the full realization of freedom of conscience for COs in COE member states, including in Azerbaijan for Bakhtiyar Hajiyev.
In Grandrath v. Germany (1966) [French] and X v. Austria (1973) [See generally ECtHR fact sheet on COs], the European Commission on Human Rights found that states were free to determine whether COs are exempt from military service. Then, in Uelke v. Turkey, the ECtHR considered the case of a CO under the ECHR Article 3 prohibition against torture and found a violation in light of the aggregate effects of numerous imprisonments and the fact that the petitioner was not exempt from military service even after serving his prison sentence. The ECtHR, however, refrained from making a decision with regards to Article 9, and the case therefore seems to have limited applicability (if any) on cases like the situation of Hajiyev, where the petitioner has not yet been subjected to numerous arrests but is being punished for his beliefs.
This jurisprudence is disturbing, but the ECtHR stands poised to change this trend in Bayatyan v. Armenia, a case the Grand Chamber will soon decide. In October 2009, the ECtHR issued a chamber decision in Bayatyan, a CO case that the Court has finally considered under Article 9. However, the Chamber decision was surprising, to say the least. In this decision, the ECtHR said that Article 9 "clearly left the choice of recognizing conscientious objectors to each contracting party." It added, "[A]rticle 9, read in light of Article 4 Section 3(b) [prohibition against forced labor outside the context of compulsory military service] does not guarantee a right to refuse military service on conscientious grounds." This decision has been widely criticized and appears to be in direct conflict with UN obligations, the ECHR, and principals that the COE itself has promulgated and imposed on its member-states.
In May 2010 the ECtHR's Grand Chamber accepted a referral of the case, so the Bayatyan decision is not yet final. According to the dissenting opinion of Judge Ann Power, the ECtHR failed to interpret the Convention as a "living instrument." In this sense, even if Article 9 and 4 Section 3(b) were once read as allowing states to not exempt COs from compulsory military service, this understanding could be reinterpreted in light of recent UN and COE activity and in a manner consistent with current standards. Additionally, consistent with the concurring opinion of Judge Elisabet Fura, the case could be assessed within the framework of the statements made by Armenia during COE accession in accordance with the International Court of Justice's Nuclear Tests Case [PDF]. Pursuant to this case, legally-binding obligations can arise from statements made by government officials. During its accession process to the COE, Armenia made statements clearly committing itself to instituting a system of alternative service, and under international law those statements "may have the effect of creating legal obligations." Similarly, Azerbaijan may be deemed to have incurred legal obligations through statements it made during the accession process. This could be relevant to Hajiyev's case, because Azerbaijan has to date not adopted legislation on alternative service. In contrast, Armenia instituted this legislation in 2003, after litigation on Bayatyan was already underway. Finally, another important consideration in the Grand Chamber's forthcoming decision on Bayatyan will be the documents that it deems relevant. In the Chamber decision of October 2009, the ECtHR excluded the ICCPR, by which Armenia is bound, but included the European Union (EU) Charter on Fundamental Rights, by which Armenia is not bound as it is not a member of the EU. Additionally, the ECtHR could include General Comment 22 of the Human Rights Committee on ICCPR Article 18, UN Human Rights Commission Resolution 1998/77 and CCPR/C/88/D/1321-1322/2004. In General Comment 22, the UNHRC says, "The Covenant does not explicitly refer to a right to conscientious objection, but the Committee believes that such a right can be derived from Article 18, inasmuch as the obligation to use lethal force may seriously conflict with the freedom of conscience and the right to manifest one's religion or belief."
Due to the dissonance between the international standards and ECtHR jurisprudence on COs, the ECtHR's decision on Bayatyan could have serious implications for member-states like Azerbaijan who are bound by the ECHR but continue to persecute COs. The Grand Chamber should diverge from the Chamber decision, and embrace the internationally accepted view that an exemption from traditional military service for COs is envisaged in the Right to Freedom of Conscience. However, even if it does not rule in this manner, the decision of the UN Human Rights Committee on the South Korea case and the COE's mandate that member states should provide alternative service options to COs should be the guiding principal for any litigation that could proceed from Bakhtiyar Hajiyev's detention and prosecution.
- In the future, Azerbaijan must work to ensure that, consistent with obligations it has undertaken before the international community, alternative service is available to COs. It should adopt and implement legislation on alternative service as soon as possible and, in the meanwhile, cease the prosecution, persecution and detention of COs.
- In parallel, the international community needs to encourage Azerbaijan to fulfill its international obligations with respect to COs. The Grand Chamber needs to ensure that its decision in Bayatyan is consistent with international standards, which clearly envisage protection for COs from compulsory traditional military service.
- Finally, intervention is needed to ensure the safety of all COs in detention in Azerbaijan, especially Bakhtiyar Hajiyev, who has already been subjected to mistreatment and expressed that his physical and mental wellbeing are in jeopardy.
NOTE: COs and advocates may find helpful Emily Miles "A Conscientious Objector's Guide to the UN Human Rights System" [text, PDF] and the ECtHR's case-law backgrounder on Conscientious Objection [text, PDF].
Photos courtesy of the Institute for Reporters Freedom and Safety (IRFS)