THE DEVELOPMENT OF A SCHOLARLY DOCTRINE FOR THE LEGAL PROTECTION OF THE HUMAN RIGHT TO CONSCIENTIOUS OBJECTION

Abstract

The article presents a critical analysis of recent scientific publications regarding the legal protection of the human right to hold religion or beliefs (conscientious objection) that make objectively impossible to fulfill military duty, viewed through the lens of Ukraine’s constitutional and international legal obligations and in the context of official reports from the State Service of Ukraine for Ethnic Policy and Freedom of Conscience, the Ukrainian Parliament Commissioner for Human Rights, human rights bodies of the United Nations and the Council of Europe, and the European Commission. It is established that the body of scientific knowledge surrounding conscientious objection as a legal phenomenon in Ukrainian jurisprudence is in the initial stage of forming its scientific doctrine. During the process of formation, several developmental trajectories have emerged, including: the constitutional-legal justification for the necessity of alternative non-military service during wartime; the development of the concept of non-military defense of the Fatherland; and the delineation of criminally punishable offenses against the established order of military duty and military service in distinction from lawful actions caused by having and professing conscientious objection. Both within the scientific doctrine and at the state level, there is a growing understanding that protecting the right to conscientious objection does not contradict but rather aligns with national interests, and that alternative non-military service can be part of the nationwide effort to defend Ukraine against Russian aggression. The majority of researchers conclude that legislative amendments are necessary to legally protect, including during wartime, the right to conscientious objection as an integral component of the right to freedom of religion or belief in its internal (forum internum) and external (forum externum) aspects, pursuant to Articles 24, 35, and 64 of the Constitution of Ukraine, Articles 4 and 18 of the International Covenant on Civil and Political Rights, and Articles 9 and 15 of the European Convention on Human Rights. This takes into account that, in its internal aspect, the right to hold a conscientious objection is absolute and must be protected by the state, cannot be subject to state interference, and coercion to change the respective religion or belief is impermissible, especially when it comes to torture, cruel treatment, and other abuses against human dignity that are strictly prohibited under any conditions by the Constitution and international treaties of Ukraine. Since conscientious objectors would rather become martyrs than soldiers, the principle of the rule of law requires not to impose on them a military duty they can’t perform, because the law should not demand the impossible (impossibilium nulla obligatio est). Obstacles to the development of scientific thought remain, including: the influence of judicial practice that disrespects human rights; doctrines incompatible with the rule of law created in the past to justify repressions of the totalitarian communist regime against believers and dissidents; an unreadiness for objective scientific analysis of sensitive issues where strategic communications of the security and defense sector promote narratives very far from constitutionalism; and the denial of the right to conscientious objection, which is frequently reinforced by claims regarding the supposedly declarative and non-binding nature of the provisions of the Constitution and international treaties of Ukraine, as well as the jurisprudence of treaty bodies. Researchers pay specific attention to the issues of balancing or harmonizing private and public interests, necessary reforms to end the persecution of conscientious objectors, verification of the validity of conscientious objection claims, and the functions and organization of alternative non-military service during wartime. A concrete system of measures for the full practical implementation and protection of the right to conscientious objection in wartime has not yet been developed by either researchers or state bodies, which necessitates further, more profound study of these issues.