Going into the fourth year of resistance of the Ukrainian nation to Russian aggression, a lack of soldiers is one of the main problems of Ukrainian reality. The Ukrainian government decreased the conscription age and used mobilisation measures to fill the country’s lack of soldiers for protection. However, not all men are ready to be part of the military, arguing that it is against their moral and religious beliefs. This blog explores how the right to conscientious objection is currently being eroded in Ukraine.

Following Article 35 of the Ukrainian Constitution, Ukrainian citizens can be useful to their country without serving in the military forces using their right to alternative service. However, a recent decision by the Ukrainian Supreme Court, where a member of the Jehovah’s Witnesses was found guilty of evading military service because of his beliefs, demonstrates that the government has another option. In arguing its decision, the Supreme Court mentioned that alternatives to military service can only be used in peacetime. However, in wartime, during mobilisation and defence, the duty to defend Ukraine falls on all citizens of Ukraine, regardless of their religion and beliefs.

Such an argument seems very strange, especially considering the recent Amicus Curiae of the Venice Commission, which clearly pointed out that Ukraine can’t ignore the internationally recognised right to conscientious objection, even in the country’s self-defence.

Such a legal position is based on Ukraine’s international obligations under Article 18 of the International Covenant on Civil and Political Rights as well as Article 9 of the European Convention on Human Rights, which prescribe the right to freedom of thought, conscience and religion. Commenting on the Covenant’s Article 18, the Human Rights Committee clearly noted that it does not explicitly refer to a right to conscientious objection, but it covers such a right that cannot be limited both in wartime and in peacetime. Such an opinion resulted from the previous logic prescribed in the UN General Assembly resolution 33/165 and the UN Commission on Human Rights resolution 1987/46, and is a basis for further logic prescribed in UN Commission on Human Rights resolutions 1995/83 and 1998/77.

After the Bayatyan v. Armenia case (2011), the European Court changed its opinion about rights covered by Article 9 of the European Convention on Human Rights. It stated that the opposition to military service motivated by a profound and insurmountable conflict between the obligation to serve in the army and an individual’s conscience or profoundly and genuinely held religious or other beliefs is important enough to attract the guarantees of Article 9 of the European Convention.

Despite this, the Ukrainian Supreme Court consciously ignored the European Court’s practice, mentioning that its practice was not concerned with assessing the actions of the state and the citizen in the context of such a large-scale war against Ukraine. Such a statement seems to twist facts and directly ignore international law and obligations because, as mentioned, international bodies have repeatedly mentioned a right to conscientious objection obligations in the war context.

It is a very risky situation when the highest national court rules not to protect human rights but to prioritise the government’s need for more soldiers. We can only hope that the Constitutional Court of Ukraine will decide in another way because the mentioned Amicus Curiae of the Venice Commission was made at the Court’s Head request to clarify the Commission opinion regarding the right to conscientious objection during the martial law (and full-scale war) regime in Ukraine. The request was caused by the need to decide about the constitutional complaint currently considered by the Constitutional Court of Ukraine concerning the conformity of Article 1.1 of the Law of Ukraine “On Alternative (Non-Military) Service”