Connection e.V. presents analysis: Federal High Court attacks basic right to conscientious objection

(12.03.2025) On January 16, 2025, the German Federal High Court (BGH) issued a decision (Decision 4 ARs 11/24) on the question of whether a Ukrainian citizen could be extradited even though he had declared that he was a conscientious objector, and Ukraine had suspended the right to conscientious objection in the event of war. In Ukraine, the conscientious objector is therefore threatened with conscription into the war and, if he refuses, years in prison.

Today, Connection e.V. presented an analysis of the BGH decision and concludes that the BGH failed to take into account key aspects of the decision.

“With this decision, the Federal High Court is attacking the fundamental right and the human right to conscientious objection,” said Rudi Friedrich from Connection e.V. today. ”It is thus joining the political demand to become ready for war or fit for war. This is a decision that affects the core of the basic right to conscientious objection.”

In the principle of the decision, the BGH concludes that extradition to Ukraine is permitted even if there is no right to conscientious objection, as Ukraine is engaged in a war of defense. The right of the state to defend itself militarily against a war of aggression in violation of international law is therefore considered to be higher than the decision of an individual to refuse military service.

The BGH also considers this to be the case in Germany. It does not consider it “inconceivable from the outset, even under German constitutional law, that conscripts in an extraordinary situation could be subject to additional restrictions and ultimately even be prevented from refusing military service for reasons of conscience.” This assertion by the Federal High Court does not comply with the constitution. According to Article 12a of the Basic Law, a conscientious objector must have the option of alternative service “which is not connected to the armed forces or the Federal Border Guard”.

The BGH further postulates that the European Convention on Human Rights allows states, as in the case of Ukraine, to suspend essential human rights in a war of defense, including the right to conscientious objection, which is understood as part of the human right to freedom of thought, conscience and religion under Article 9. The lack of case law from the European Court of Human Rights is being turned against conscientious objectors. And not only that. Rudi Friedrich: “The Federal High Court completely overlooks the fact that Ukraine withdrew the exception to Article 9 on April 4, 2024. The conclusion that the derogation applies to Ukraine and that the country therefore does not have to provide for a right to conscientious objection is wrong.”

Furthermore, the Federal High Court also deals with the international standards on conscientious objection based on Article 18(1) of the International Covenant on Civil and Political Rights. Here too, the BGH refers to possible exceptions, although these are expressly excluded in Article 4 of the Covenant. The Federal High Court is thus going against the UN Human Rights Council, which stated on April 23, 2024 that “the right to conscientious objection to military service as an inherent part of the right to freedom of thought, conscience and religion cannot be impaired, even in a time of public emergency that threatens the life of the nation.”

“In view of the war in Ukraine and the political demands to prepare for war, the Federal High Court is now getting involved and wants to turn the basic right to conscientious objection into a fair-weather right,” concludes Rudi Friedrich. “It is thus making itself a stooge for political demands to be prepared for war. This is outrageous, extremely dangerous and urgently needs to be corrected.”

Connection e.V.: News, March 12, 2025

Keywords:    ⇒ Conscientious Objection   ⇒ Germany   ⇒ Human Rights   ⇒ Ukraine