The Right to Conscientious Objection Under Martial Law in Ukraine
The right to conscientious objection to military service as a fundamental human right is recognized and guaranteed at the international level. This opposition may rest upon reasons of religious belief, philosophy, morality, ethicality, emotional or political grounds. However, at the same time, the recognition of the right to conscientious objection to military service is a conspicuous omission from the list of internationally guaranteed human rights since it is largely enshrined implicitly rather than explicitly. Within the framework of the United Nations, this right finds its place as an integral part of the broader right to freedom of thought, conscience, and religion enshrined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. While the Covenant does not explicitly mention the right to conscientious objection, the Human Rights Committee has suggested that the obligation to use lethal force may seriously conflict with freedom of conscience and the right to manifest one’s religion or belief. Moreover, recognition of this right can be discerned in many United Nations recommendations and reports. Notably, this right was specifically highlighted by the Human Rights Committee, which in November 2021 and February 2022, advised Ukraine to provide alternatives to military service for all conscientious objectors regardless of the basis of their objection. Within the framework of Europe, this right receives the same implicit consolidation in the European Convention on Human Rights (ECHR); however, at the European Union (EU) level, this right is expressly enshrined, but Ukraine aspires in the preamble of its Constitution to be part of the EU.1See Article 10 of the Charter of Fundamental Rights of the European Union. Practical application of the ECHR can be found in the case law of the European Court of Human Rights (ECtHR), which is binding on Ukrainian courts.2See Article 17.1 Courts apply the Convention and the practice of the Court as a source of law when considering cases. In the Bayatyan, Tarhan, and Savda cases, the court unequivocally declared that the absence of recognition for the right to conscientious objection and the criminalization of individuals exercising this right are two impermissible facets within democratic societies. Taking into account the ECtHR’s binding practice, the Ukrainian judiciary even created a precedent protecting this right. Hence, referring to the ECtHR case Bayatyan v. Armenia, a Supreme Court of Ukraine judgment on 23 June 2015 affirmed that conscientious objectors’ rights are protected even during mobilization for armed conflict, not just during routine call-ups for military service. This judgment was not subject to appeal and turned into case law for lower courts in Ukraine.3See Article 368 of the Criminal Procedure Code of Ukraine, which states that when any Ukrainian court passes a sentence, it should take into account the conclusions on the application of relevant legal norms as set out in the Supreme Court’s rulings.
The Constitution of Ukraine is the basic law that guarantees the right to conscientious objection to military service. Article 35 mandates that if military duty conflicts with a person’s religious beliefs, they can perform alternative, non-military service instead. This article partly comports with EU or international standards. The constitutional law on alternative non-military service restricts this right for citizens since it grants during routine call-ups or drills only if:
- they satisfied the bureaucratic requirements (e.g., applied on time, were present during the consideration of the application, and proved that religious beliefs are contrary to duty)
- their religious organization is registered
- their religious organization’s creeds officially prohibit the use of weapons (only ten such religious confessions are recognized)4Reform Adventists; Seventh-day Adventists; Evangelical Christians; Evangelical Christians-Baptists; “The Penitents” or Slavic Church of the Holy Ghost; Jehovah’s Witnesses Charismatic Christian Churches (and associated churches under their registered statutes); Union of Christians of the Evangelical Faith – Pentecostals (and associated churches under their registered statutes); Christians of Evangelical Faith; Krishna Consciousness Society.
- military duty contradicts their religious beliefs.
Furthermore, there is a lack of provisions regarding the application of this right during the mobilization period under martial law. The interpretation of this absence varies among officials, with some perceiving the absence as an indication that the right in question does not exist, despite the constitutional provision, while others contend that although the constitution allows for the freedom to practice a particular religion, such freedom may be constrained, consequently limiting the possibility of alternative service. Nevertheless, no restrictions on this right have yet been imposed by law. The state-sponsored free legal aid that advises on legal matters and defends against prosecution of the people who cannot afford high-quality legal services currently supports the government’s position that the concept of alternative (non-military) service cannot exist during martial law.
Analysis of Ukrainian legislation has revealed that the right to conscientious objection in Ukraine falls short of full alignment with UN recommendations and the case law of the ECtHR since it is currently limited solely to religious grounds. However, even on these grounds, conscientious objectors cannot fully exercise this right because of the stance taken by Ukrainian officials, which contradicts Ukraine’s constitution and its international obligations. Lack of awareness of the international human rights standards among conscientious objectors as well as lack of funds for quality legal aid may lead them to accept the Ukrainian governmental position as valid. The prevailing circumstances entail significant ramifications, as they lead to prosecution if one opts to decline mobilization on religious, moral or emotional grounds or to a decision to adhere to the government’s position and bear arms against one’s personal beliefs. This is exemplified by cases of imprisonment ranging from one to five years (including suspended sentences or probation) for individuals who request alternative military service. These were reported in 2023 by Forum 18, Human Rights Without Frontiers, and Kharkiv Human Rights Group.
One of them is Christian, Vitaly Alekseenko, an internally-displaced person who arrived in the city of Ivano-Frankivsk on May 30, 2022, due to active hostilities on the territory of Donetsk region, and on the very same day, he was registered as a conscript and declared fit for military service. On June 2, 2022, Alekseenko was summoned by the City Recruitment Office to be sent to a military unit. During this visit, he informed officials of his inability to take up arms due to his Christian faith and submitted an application requesting alternative service. Officials explained to him the legal requirements for alternative non-military service; however, they also indicated that “there is no certainty that he’s a believer,” thereby rejecting his application.
Alekseenko has a certificate confirming participation in alternative service in Uzbekistan in 1996-1998 on conscience grounds. He believed in Jesus Christ and his command to resist evil without violence and be a peacemaker; however, he didn’t attend any church since he believed they did not adhere to Christ’s teachings. On June 6th, when Alekseenko refused to be mobilized, military officials called the police to bring him to criminal liability. During the investigation, on the investigator’s advice, he pleaded guilty but refused to repent of his actions. Alekseenko stated at a court hearing, “I agree that I have broken the law of Ukraine, but I am not guilty under the law of God.” The court sentenced him to one year’s imprisonment. During the appeal, one judge asked him how he could prove that killing people was incompatible with his religious beliefs. He responded that if the court did not believe him, he would be unable to convince it. He again set out his religious reasons for opposing military service. Alekseenko’s simpleness and sincerity seemingly didn’t impress judges, and the Court of Appeals upheld the sentence.
The Supreme Court of Ukraine has nullified the lower courts’ rulings and sent the case for a new trial, aiming to elucidate the defendant’s motivations and intentions that led him to opt for alternative service since the lower courts did not do so. However, this stance contradicts Forum 18’s reports, asserting that Alekseenko has clarified his motives and intentions on multiple occasions. Additionally, the trial court’s decision stated that Alekseenko fully and unequivocally admitted guilt, affirming all the charges in the indictment, with his religious beliefs being merely the reason for not expressing remorse for the committed crime. Notably, the Supreme Court had the authority to annul the lower courts’ decisions due to the absence of corpus delicti or “evidence of a crime” in Alekseenko’s actions, thereby concluding the criminal case and safeguarding the defendant’s rights.5Criminal Procedure Code of Ukraine, see Article 440. Furthermore, this would have set case law for others facing similar challenges in exercising this right. The lack of such a precedent favors the government’s perspective, which may continue to assert that this right does not exist during martial law, and the trial’s decision, even if it is an acquittal, will not serve as case law in Ukraine. In stark contrast, the US Supreme Court ruling in 1965 during the Vietnam War provided extensive support to a conscientious objector.
Under the same trial court, another ruling was passed against a local resident, Hennady Tomniuk, who had previously completed regular military service. On April 6, 2022, he received a call from the draft board. Following a medical commission’s decision on April 8, he was deemed fit for military service and scheduled to start it on April 15. However, on April 15, Tomniuk submitted a statement expressing his religious beliefs and requesting to perform alternative service. His request was rejected, and due to his unwillingness to mobilize, a criminal case was opened on the same day. On May 19, Tomniuk became a member of the Evangelical Christians-Baptists Church, which fully complied with the law requirements. He subsequently submitted the relevant evidence to both the court and the prosecutor’s office. Nonetheless, the court unequivocally established that Tomniuk did not possess the right to opt for alternative service at the time of his call-up for military service during mobilization. Consequently, the court deemed it necessary to impose criminal punishment upon him in the form of imprisonment for a term of three years with a probationary period of three years. The Court of Appeals upheld this decision.
An alternative perspective on this right under martial law found expression in the ruling of the Tyachiv District Court of Zakarpattia Oblast dated March 20, 2023. The court examined the case of Viktor Seevets, a deacon of the Jehovah’s Witnesses Church who previously underwent alternative military service and demonstrated overall compliance with the Ukrainian legislation at the time of conscription, unlike Alekseenko and Tomniuk. In the case of Seevets, the government reiterated that the current legislation does not include provisions for conscripts who are called up for military service during mobilization under martial law to opt for alternative service. However, Judge Mykola Bryanik identified a legislative gap within the Ukrainian legal framework, referred to the Bayatyan v. Armenia case, while noting the existence of religious and other reasons for conscientious objection to military service, and rendered a verdict of acquittal, which is very rare in Ukraine. In this particular instance, the prosecutor’s office, however, exhibited an unwillingness to acknowledge Ukraine’s breach of its international obligations. Rather than accepting the court’s acquittal decision, the prosecutor’s office pursued an appeal, thereby prolonging the legal proceedings and potentially impeding the recognition of Ukraine’s failure to uphold its international commitments.
At the same time, on April 4, 2023, the very same Judge Mykola Bryanik handed down a four-year prison sentence with a two-year probationary period to Yury Konar, who declined mobilization on religious grounds, as he believed it was morally wrong to take another person’s life. In contrast to Seevets, Konar had previously served in a military unit. During the case’s deliberation, the court revealed that Konar’s religious beliefs, despite Konar’s argument, remained unchanged from the time of his military service, and Konar’s refusal to mobilize on religious grounds is a deliberate form of self-defense to evade criminal liability. In this instance, the Judge “overlooked” the established ECtHR jurisprudence, to which he referred in his previous ruling. This case is a prime illustration of selective justice in Ukraine. Furthermore, the court also revealed that when applying to refuse conscription for military service due to religious beliefs, Konar did not apply for replacing military service with an alternative, which was a crime in this case. Based on this precedent, it is important to acknowledge that a person’s religious beliefs remain unchanged despite any failure to satisfy administrative requirements. This case highlights the need for the responsibility of initiating the alternative military service process to lie with a military official, who should inquire about an individual’s refusal and provide an opportunity to withdraw such refusal. Moreover, individuals should be able to exercise this right even if they voluntarily join the frontline and subsequently change their minds.
The latest example is the case of Yury Mochar, who strongly opposed violence, killing, and harboring animosity toward others. Mochar faced an exceptionally severe verdict of three years in prison, although he has a minor child. Mochar asserted that he had raised concerns about his health during the medical examination, yet his statements went unanswered by anyone present. His conscientious objection to being conscripted for mobilization was deemed unacceptable by the court, as Judge Hrymut Volodymyr believed that the killing of the enemy cannot be equated to committing murder. Consequently, the court viewed his explanation as a mere attempt to justify his reluctance to fulfill his duties and evade punishment for the committed crime. Notably, the appeals against Viktor Seevets’s acquittal and the imprisonment of Yury Mochar will be considered by the same judge, Judge Ivan Feyer. Perhaps this court will see double standards of treatment.
As illustrated by the aforementioned precedents, certain segments of Ukraine’s population are unable to exercise their right to conscientious objection to military service during mobilization in Ukraine, which contradicts the stance of the country’s own Supreme Court, the ECtHR practice, and various UN positions and recommendations. Some conscripts even cry, not wanting to return to the frontline, while others vigorously resist mobilization, although, knowing about this right, their life could have turned out differently. Moreover, Alekseenko’s case raises moral and ethical concerns, particularly as he fled from the dangerous frontline in Donbas to be safe, only to face being sent back to the very same dangerous frontline within a week. Perhaps that’s why people don’t want to be evacuated. Additionally, his case exemplified the caliber of the entire Ukrainian judiciary, which compelled an innocent individual, per international human rights standards, to confess guilt and prove his innocence.To prevent manipulation of this right, it must be explicitly enshrined in binding international law since the UN recommendations and the ECtHR practice do not work properly in Ukraine and other developing countries. Given the constraints imposed by martial law and the cases of suppression faced by internal advocates, it is vital for international human rights organizations to assume a crucial role in safeguarding not only this right but also other fundamental human rights in Ukraine. Furthermore, it is imperative for the Ukrainian legislature to undertake a significant revision of Ukrainian legislation to recognize the full concept of this right without bureaucratic barriers. ♦
Dr. Illia Roskoshnyi is a Research Associate at the University of Manitoba – Faculty of Law. His primary interests involve International Human Rights Law, the Interaction of Constitutional Law and Religion (religious courts, religious autonomy, constitutional and legal guarantees of religious rights, equality), Philosophy of Law, Legal and Political History and Theory.
Roskoshnyi, Illia. “The Right to Conscientious Objection Under Martial Law in Ukraine.” Canopy Forum, August 8, 2023. https://canopyforum.org/2023/08/08/the-right-to-conscientious-objection-under-martial-law-in-ukraine/.