A Matter of Security? Conscientious Objection and State Recognition

Recognition of the right to refuse military service seems at first glance to be inherently paradoxical. Yet over the course of recent decades, with the broadening of democratic discourse, democracies have begun to recognize even opposition to military service on grounds of conscience—whether religious or otherwise. Some incorporate the recognition of conscientious objection in their constitutions or legislation; others accommodate it through informal arrangements; still others—by now a minority among the world’s democracies—continue to refuse recognition of the right to conscientious objection and handle the phenomenon through punishments of varying gravity.

Indeed, as the model of mass army declines, conscientious objection loses its sting. In 2011, for example, Germany suspended conscription, joining other Western democracies that have done so since the end of the Cold-War. Nevertheless, conscientious objection (CO) remains a constant source of conflict in democracies that maintain conscription. One prominent example of the latter is Israel, in which military service has been mandatory since its foundation in 1948. Though not very significant in absolute numbers, different forms of objection to military service—whether derived from an altogether pacifist rejection of violence, or rather based on a political objection to the 1967 occupation—always existed in parallel to conscription. The state, however, abstained from recognizing it, though it accommodated it to some extent through informal and administrative means. Israel has often maintained that its special security situation prevents it from recognizing the right to conscientious objection. As the Supreme Court ruled in 2002: “Where security needs are acute, even a pacifist will not be exempted.”

Other democracies suffering from similar security concerns are indeed rare, especially those maintaining conscription. Nevertheless, a return to the European context, albeit to the different time and circumstances of the Cold War, allows us to challenge the assertion that security concerns dictate the policy towards conscientious objection. According to the security argument, West Germany should have been reluctant to recognize and accommodate conscientious objection to military service, given its strategic location between the Eastern and the Western bloc, and its active role as a member of NATO within the the defense framework of Western Europe. Yet, even prior to the establishment of the Bundeswehr, West Germany included in its 1949 Basic Law the broadest and most explicit recognition of conscientious objection among European democracies, stating in Article 4.3 that “no one may be compelled against his conscience to render war service involving the use of arms.” While this article was in fact drafted before the security circumstances of the Cold War had crystalized, West Germany maintained an accommodating policy of exemption from military service over the following decades.

Switzerland is yet another example that challenges the coupling of the recognition of conscientious objection with security considerations. In the very same time period of the West German case above, Switzerland—despite its neutrality and the fact that no war has been fought on its soil for more than 150 years—had led an especially harsh policy towards conscientious objectors, not only in comparison to West Germany, but also to other Western democracies. This was in spite of the fact that objection to military service in the Militia, the Swiss army, is empirically a marginal phenomenon.

In addition, the comparison between these two states can teach us in addition something about the relation between law and social behavior. In Germany the number of conscientious objectors grew progressively between the legal recognition of conscientious objection in the Basic Law of 1949 and the suspension of conscription in 2011. This trend went hand in hand with the gradual liberalization of conscription policy, which featured the strengthening of the Civilian Service alternative to the military. But the landmark of this liberalization was indeed the 1984 reform in the procedure of recognition, which made it easier for German men to obtain conscientious objector status. By the end of the 1980s a quarter of every cohort was applying for CO status; 99% of their applications were approved. In Switzerland, much like in Germany, conscientious objection became more common from the 1960s on, but never exceeded 1% of the pool of potential conscripts. And yet, Switzerland was the last European democracy to introduce official civilian service as an alternative to military service.

The key for understanding the discrepancy between Germany and Switzerland—in terms of both policy and the rate of objection—lies in the way each state conceptualizes the relations between citizenship and military service. Switzerland fits the republican model of the “citizen-soldier”, which binds these two concepts together, thus making military service the ultimate contribution to the collective: military service makes citizenship. In West Germany, on the other hand, the educational reform that accompanied the establishment of the Bundeswehr, “Innere FĂŒhrung”, saw the soldier rather as a “citizen in uniform”—emphasizing that the soldier is first and foremost a citizen. Accordingly, the Bundeswehr was confined to its functional role as a mere instrument of foreign policy and was not intended to be a “school for the nation”. The Swiss militia, on the other hand, had additional social roles: as a tool of social integration and nation building. As we can see from the Swiss case, states in which the army is a symbol rather than a mere instrument, are more likely to refrain from recognizing the right to conscientious objection in a formal way, regardless of their security situation.

The German and Swiss cases thus shed new light on the Israeli policy toward conscientious objection. Rather than remaining strictly within the realm of security, the reluctance of states to accommodate conscientious objection often has more to do with the type of role that is assigned to the army in society and the relation between military service and citizenship.

Adi Livny’s article “‘An Order is an Order?’ Conscientious Objection in Cold War West Germany” has been published in Hebrew in Hayo Haya: A Young Forum for History 10 (2014): pp. 94–113.

Written by

Adi Livny is a PhD candidate at the Department of History of the Jewish People and Contemporary Jewry at the Hebrew University of Jerusalem. She was a Global Humanities Junior Fellow at Freie UniversitÀt Berlin and a Visiting Researcher at the WZB Center for Global Constiutionalism from July to October 2015.
Website at Da'at Hamakom

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