Military Service, Alternative Social Service, and Conscientious Objection in the Americas: A Brief Survey of Selected Countries

아메리카 대륙의 병역의무, 대체적 사회봉사, 양심적 거부: 
선택된 국가들에 대한 간략한 조사

Introduction

Military recruitment and military service have been the sources of egregious human rights violations in the Americas. The practice of forcible recruitment, while on the decline, continues in several countries. Children also are susceptible to forcible recruitment where practiced. Our office has received reports indicating that recruits often are subjected to physical, psychological, and sexual abuse at the hands of their military superiors. Often occurring as "punishment" for infractions of military rules, such abuses appear to result from the arbitrary exercise of authority by military officials. Moreover, reports indicate that standard military training practices may in some countries involve subhuman conditions including an inadequate diet and exposure to ritualistic "hazing" practices such as the consumption of human or animal blood.

The transition from military to civilian rule in much of the Americas has been accompanied by an evaluation of military service requirements and other issues germane to improving human rights guarantees. In several instances collaborative efforts between elected government officials and various sectors of civil society have led to significant changes in military conscription practices and military service requirements. Most notable is the case of Honduras, where popular outcry over the practice of forcible conscription resulted in the passage of a constitutional amendment establishing a voluntary military service. The case of Honduras also provides an illuminating example of the difficulties that will be encountered in the transition from obligatory to voluntary military service. Recent reports indicate that nearly 50% of youth conscripted during a 1994 military draft have since deserted. Few Honduran youth have interest in serving in the military, due to the poor image of the armed forces and difficult conditions within the armed forces.

A tendency toward a voluntary military service in the Americas is becoming apparent, however. Additionally, in several countries where military service remains obligatory, civilian efforts are underway to establish regulatory guidelines for military conscription and legal protections for youth susceptible to conscription. Of critical importance are the advances being made for those persons who oppose military service on moral, ethical, religious, humanitarian, and other grounds. Such persons are commonly referred to as conscientious objectors. The concept of Alternative Social Service (Service Civil) is being introduced in several countries as an alternative to armed service for conscientious objectors. This trend is consistent with developments in numerous European nations and international legal standards. It should be noted that only Canada and the United States extend conscientious objector rights to military personnel.

The present survey utilizes results of a comprehensive investigation being conducted by NISBCO on the subject of human rights and military service, to be released in September of 1996. Where more recent data is not yet available, we have relied on an Amnesty International study published in 1991 entitled Conscientious Objection to Military Service, and a 1994 report of the Secretary-General of the United Nations to the Economic and Social Council on the matter of conscientious objection (E/CN.4/1995/99). Data also comes directly from the embassies of the countries in question, and through the official published records of legislative proceedings. For those countries designated with an asterisk, additional information follows the listing.

Countries surveyed: 27
Countries with obligatory military service: 13
Countries with voluntary military service: 9
Countries with no military service: 4
Countries recognizing conscientious objection: 6
Countries with alternative social service: 4

Argentina

Law number 24.429, entitled Servicio Militar Voluntario, promulgated on 5 January 1995, regulates military service in Argentina. The law establishes a voluntary military service yet reserves for the congress the right to conscript 18-year-olds for a period of service not to exceed one year. Such conscription may be ordered when, for enunciated reasons, an inadequate number of volunteers present themselves for military service.

During military conscription those persons (conscientious objectors) who, for "profound religious, philosophical, or moral convictions," are unable to perform obligatory military service will be required to perform alternative social service in such areas as public health and the environment. The law further states that in time of war, alternative social service will consist of activities related to civil protection and defense.

The Constitution of Brazil, in article 143, paragraph 1, recognizes conscientious objection, assigning competence to the Armed Forces for the adjudication and assignment of conscientious objectors. As regulated by Decree Number 8.239 of 4 October 1991, and by Regulation 2.681 of 28 July 1992, those persons who are opposed to armed service for "religious beliefs or philosophical or political convictions" may be exempted from "activities of essentially military character" while fulfilling their obligatory military service requirements. Conscientious objector advocates in Brazil have noted that the present system is inadequate insofar as the option of civilian alternative service is unavailable. Many conscientious objectors are opposed to any affiliation with or service in the armed forces. Military service is obligatory in Brazil.

Colombia's Constitution of 1991, in article 216, establishes an obligatory military service, regulated by Law 48 of 1993. The same constitution, in article 18, states that "...freedom of conscience is guaranteed. No one will be obligated to act against their conscience." While a right to conscientious objection is not explicitly stated in article 18, conscientious objection was one of the concepts discussed in the formulation of this article. However, legislative efforts to provide guarantees for conscientious objectors have not prospered. Conscientious objectors who refuse military service may be subject to the charge of desertion and imprisoned.

El Salvador  

The Salvadoran Constitution and military service law establish an obligatory military service. In practice, since the end of the armed conflict in January of 1992, military service has been rendered on a voluntary basis. The military service law is currently undergoing revision.

Guatemala  

Article 135 of the Guatemalan Constitution establishes an obligatory military service. The Ley Constitutiva del Ejercito, in title 4, articles 68-78, regulates military service.

The Global Human Rights Accord signed in March of 1994 by representatives of the Guatemalan government, the URNG guerrillas, and the United Nations stipulated that a new military service law would be enacted in order to end the practice of forced recruitment and other violations of human rights occurring in the context of military service.

Two distinct law proposals, from the Minister of Defense and the Human Rights Ombudsman, were submitted to the Guatemalan Congress for review. The Comision de Apoyo Tecnico Juridico (UPAT) of the Guatemalan Congress analyzed the two proposals for consistency with the Guatemalan Constitution, the Global Human Rights Accord, and obligations deriving from international treaties.

The UPAT analysis recognizes the constitutional requirement of obligatory military service. Ambiguity arises in the same constitutional article, which stipulates that it is a right and duty of Guatemalans to perform "military and social service." The study also concludes that current obligations under international law require that Guatemala provide guarantees for conscientious objectors. In an attempt to reconcile deficiencies contained in the two proposals, UPAT has proposed an alternative, the Ley del Servicio Patriotico. Military service remains obligatory in this proposal, though the option of alternative social service is granted for conscientious objectors.

  The practice of forced recruitment came under fire in the early 1990's as a result of several incidents leading to the death of civilians during forced recruitment operations. Decree Number 24-94 was passed in May of 1994 establishing a voluntary military service during peacetime. The amendment reserves for the Congress the right to conscript "...in conformity with the Military Service Law." Military service is regulated by Decree Number 98-85 of 22 August 1985.

At present, the Honduran Congress is preparing to debate a new law proposal to regulate military service, in conformity with the above-mentioned constitutional reform. The proposal reserves the right for the military to conscript. Reports indicate that the proposal does not provide guarantees for conscientious objectors, although on two occasions in the 1980's proposals recognizing conscientious objection were brought before the Congress.

Law 569 regulates military service, which is obligatory in accordance with the Paraguayan Constitution of 1992.

Articles 37 and 129 of the constitution explicitly recognize a right of conscientious objection. Article 37 reads "conscientious objection for ethical and religious reasons is recognized...." Paragraph 5 of article 129 states "those that declare their conscientious objections will perform service benefiting the civilian population through centers ...under civil jurisdiction."

There is no law regulating conscientious objection and alternative service in Paraguay. The constitutional guarantees for conscientious objectors remain unenforced.

The right of the government to raise and maintain an army, including the right to conscript, has been recognized and upheld by the courts. While military service presently is voluntary, all 18-year-old youth are required to register with the Selective Service System, the civilian agency charged with conducting a military draft when required by law. The Military Selective Service Act provides for military conscription. Section 6(j) of the Act states that "nothing contained in this title shall be construed to require any person to be subject to combatant training and service in the Armed Forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form." Alternative service is provided for conscientious objectors when there is conscription.

Military personnel who develop conscientious objections to military service may seek reassignment to noncombatant duties or discharge from the Armed Forces under Department of Defense Directive 1300.6.