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The Right to Conscientious Objection to Military Service and Turkey’s Obligations under International Human Rights Law

0 Comments 🕔16.Apr 2015

One of the most demanding duties of citizenship is military service, and different countries place different conscription duties upon their citizens. However, there seems to be international consensus that conscientious objection to military service should be recognized and respected, and that alternative options for national service should be provided. In this short monograph, Özgür Heval Çınar examines Turkey’s noncompliance with international treaties and judicial decisions requiring recognition of conscientious objection, offers an overview of the incongruent domestic and international legal schemes, provides a cultural explanation for Turkey’s deviance from these requirements, and maps out a legal plan for amending domestic law to bring it into accordance with international obligations.

Most of the monograph is a survey of doctrinal international and domestic law. Çınar opens by presenting international law standards. The United Nations and the Human Rights Commission have both created general conscientious objection exceptions. Moreover, international court decisions have greatly tempered domestic punishment of conscientious objectors; for example, repeated punishment for consistent objection has been found to constitute double jeopardy, as it is punishment for the “same offense.” Similarly, European law has progressed toward a consensual recognition of conscientious objection. Between 1966 and 2011, European treaties and courts acknowledged diversity between countries on the matter, but a 2011 landmark case changed this approach, with the court proclaiming that conscientious objection recognition is necessitated by democratic principles. This decision was later echoed by subsequent decisions excoriating the pain and suffering inflicted upon incarcerated conscientious objectors. In the particular case of Turkey, the court has highlighted that the country’s lack of alternatives to military service, as well as proper procedures for discharge from service, upset the appropriate balance between the state and the individual. The court decisions frequently mention that conscientious objection recognition is, at this point, a consensus among European countries.

Turkey’s noncompliance with the requirement to recognize conscientious objector flies in the face of these European and International obligations, a fact that, as Çınar points out, is particularly jarring given its aspirations to join the European Union. Not only does Turkey disallow conscientious objection, it offers no civilian service alternative, and it harshly punishes objectors. Under Turkish law, conscientious objection can yield up to ten years of imprisonment, which can amount, as pointed out by the European Court of Human Rights, to “civil death,” by plunging defendants into a vicious cycle of “military unit – military court and military prison” without any prospect of closure (67).

To understand the roots of Turkey’s stubborn noncompliance with European standards, Çınar turns in chapter four to a discussion of the historical and cultural roots of military service in Turkey. In the early 20th century, he recounts, Turkey underwent an aggressive process of nation building, which was largely undertaken by military elements. The importance of militarism in this context stemmed not only from the German origins of the nation-building project, but also from the sense that militarism would build a sense of national pride and cohesion. To generate enthusiasm among a population already weary from previous wars, the new government generated a constant state of warfare, intently and persistently infusing the educational curriculum with the notion of military service as the ultimate manifestation of citizenship. Çınar illustrates this campaign by referring to school textbooks portraying the patriotic Turk as, first and foremost, a soldier. He also points out that, in the absence of a bourgeoisie, military elements have come to be intimately involved in all aspects of civil life. Additionally, military service has come to be the ultimate marker of masculinity. Compulsory military service is not only of prime importance within the concept of the military nation, but also a path to the socioeconomic and civic elite. As Çınar concludes, “[T]he resulting strong influence of the militarist elements within the legal system has allowed the permanence on the statute book of provisions which flout international standards regarding military service and the right to conscientious objection” (68).

Interestingly, this deeply engrained cultural approach is not unambiguously coded into Turkish law. The Turkish constitution states that “every Turk shall perform national service”; however, the Military Service Act does not provide any “national service” alternative beyond military service, and it limits conscription duties to men. Moreover, the law allows for a costly monetary redemption option. Turkey’s noncompliance with the international standard is largely the product of judicial disobedience. One thing that has been introduced is monetary redemption.

At the end of the book, Çınar  provides a blueprint for legislation that would bring Turkey into compliance with international law standards. His prescription is to amend the Military Service Act so as to include an alternative service option, as well as to amend the penal code in order to decriminalize offenses associated with conscientious objection.

Additionally, Çınar’s summary of international and domestic doctrine is detailed and useful. The legal survey is organized by authority, clearly delineating the international and European stances on conscientious objection and surveying important cases. In doing so, he highlights the similarities between such international regulatory bodies, as well as the subtle differences in philosophical approach toward conscientious objection. His discussion of Turkish domestic law is just as clear. I found myself, however, wishing for considerably less doctrine and considerably more socio-legal analysis of the sources for Turkey’s noncompliance. Çınar’s discussion of nation building and militarization is based primarily on secondary sources, which was disappointing given that it was the most interesting part of the book. The fascinating but short survey raised, for me, more questions than it answered, which I wish were discussed in the book, such as the extent to which Turkey’s approach towards conscientious objection is a salient part of the internal national conflict about belonging to the European Union; whether the resistance to service, which seems from the cases surveyed to come primarily from Jehovah’s Witnesses, has had any traction among other religious or philosophical groups; the meaning of religious dissent in an increasingly Islamic setting; the import of these doctrines in times of civic and military unrest; whether there are feminist perspectives on the limitation of conscription to men, and the extent to which socio-political advantages attaching to military service increase gender disparities; and finally, the deeper questions about masculinity in Turkish society and its manifestation via militarism.

The last issue is particularly poignant given Çınar’s description of Turkish policy toward those who refuse military service on grounds of homosexuality. According to the book, people seeking such exemptions have to provide photographic or medical evidence of same-sex activity and must bring witnesses. In cases for which such evidence does not yield an unambiguous determination of the applicant’s sexuality, this process can lead to psychiatric hospitalization. Such cases alone could provide enough grounds for critical analysis and perspective to  shed light on the ethos of a conception of masculinity which fuels noncompliance, and it is sorely lacking in the book. An elaboration of the socio-cultural themes at the expense of the doctrinal description would also allow for interesting comparisons with other countries whose complicated approach toward conscientious objection reflects cultural engagement with militarism, national unification, and collective conformity, such as Israel, whose bifurcated policy toward conscientious objection (allowed for pacifists, but not for those who oppose governmental policy and the occupation of Palestinian territories) taps into not dissimilar cultural themes.

While the book leaves the reader desiring much more in the way of understanding the rich cultural contradictions underlying Turkey’s noncompliance with international standards, it certainly provides a valuable starting point to the discussion, complete with a helpful analysis of international and domestic law seldom available to non-native readers.

Reviewed by Hadar Aviram, University of California Hastings College of the Law

The Right to Conscientious Objection to Military Service and Turkey’s Obligations under International Human Rights Law
by Özgür Heval Çinar
Palgrave Macmillan
Hardcover / 180 pages / 2014
ISBN: 9781137468109

 

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