Federal Court of Justice attacks basic right to conscientious objection

An analysis of the decision of the court

(12.03.2025) The decision was made several weeks ago. On January 16, 2025, the German Federal High Court (BGH) issued a decision (Decision 4 ARs 11/24) at the request of the Dresden Higher Regional Court (OLG Dresden) on the question of whether a Ukrainian citizen may be extradited even though he has declared that he is a conscientious objector and Ukraine has suspended the right to conscientious objection at the beginning of war. In Ukraine, the conscientious objector is therefore threatened with conscription into the war and, if he refuses, years in prison.

The decision is a tough one, especially with regard to the interpretation of the constitutional right to conscientious objection under the German constitution.    

The current case

First of all, a reference to the case on which the BGH issued its decision. A constitutional complaint would be sensible and necessary in these proceedings. However, the person concerned has not yet agreed to this.

A further note: the extradition was requested by Ukraine for resistance to state authority, not for conscientious objection or any other military offense. This opened the way for extradition proceedings in the first place. Article 4 of the European Convention on Extradition stipulate that extradition is not permitted for military offenses.

Principle of the BGH decision

In the principle of the decision, the BGH comes to the conclusion 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. This finding contradicts a decision by the Federal High Court in 1977 (Federal High Court, Decision of May 24, 1977 - 4 ARs/6/77) and is therefore a political issue for this reason alone.

In the current decision of January 16, 2025, the guiding principle reads: “If, in extradition proceedings under the European Convention on Extradition of December 13, 1957, the persecuted person refuses military service with a weapon for reasons of conscience and there is no guarantee that he will not be called up for military service in the requesting state If the persecuted person refuses military service with a weapon for reasons of conscience in extradition proceedings under the European Convention on Extradition of December 13, 1957, and if there is no guarantee that he will not be called up for military service in the requesting state after his extradition and that he will not face punishment if he refuses, this does not constitute an obstacle to extradition if his home country requesting extradition is attacked by force of arms in violation of international law and a right to conscientious objection is therefore not guaranteed” (BGH, Decision of January 16, 2025, 4 ARs 11/24).

There are already various comments on the BGH’s decision, some of which go into the legal background in great detail. At this point, we would like to name the most important points that speak against the BGH’s interpretation and assess the political significance of the decision regarding the right to conscientious objection.

Federal High Court on the right to conscientious objection under the Basic Law

However, the BGH goes even further than its guiding principle. It comes to the conclusion - without this actually having to be the subject of the extradition request - that, ultimately, the right to conscientious objection could not be upheld in the event of war. The Federal High Court puts it like this: “It does not appear 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 must indeed be read as an attack on the fundamental right to conscientious objection under Article 4(3) of the German constitution. Precisely because the Federal High Court does not make this statement as a statement, but as a possible conclusion, so to speak - and even repeats it - this reflects an attempt to question the general validity of the fundamental right. In essence, the question is whether a right to conscientious objection applies precisely when it matters: in war. Or whether, as the Federal High Court formulated it, the right may be suspended or restricted in such a case. It must be clearly stated here: the fundamental right to conscientious objection is universally valid!

Prof. Dr. Kathrin Groh dealt with this issue in detail in an article on verfassungsblog.de and came to the conclusion: “The fundamental right to conscientious objection under Article 4 (3) of the German constitution is tailored to the case of war. Its inviolable core area requires unrestricted validity especially in the case of defense. The core area of Art. 4 para. 3 of the German constitution is unwavering.”

First of all, she notes that the Parliamentary Council, after weighing up various formulations, decided “to recognize every decision of conscience as a fundamental right, from which a prohibition of killing in war arises for the individual, against which he cannot act without serious need of conscience.” This means, and here she refers to the Federal Constitutional Court, that the law “may not simply be overridden in the event of war”.

She also points out that in its first decision on Article 4 (3) of the German constitution, the Federal Constitutional Court dealt with the question of whether military service could be refused. In other words, the question was whether the fundamental right to conscientious objection meant not only refusing military service in the event of war, but also beforehand. And the Federal Constitutional Court clearly affirmed this, based on the principle that the core of the fundamental right is conscientious objection in the event of war. The right to conscientious objection in the event of war is therefore of greater importance, and only from this follows the right to refuse military service.

But how does the Federal High Court come to the conclusion that everything is different? It refers in particular to the 1968 amendment to Article 12a of the Basic Law, which provides for far-reaching possibilities of compulsory service in the event of an emergency or war. But the reference is wrong, as Kathrin Groh points out. Article 12a paragraph 2, sentence 3 clearly states: “The details shall be regulated by law, which must not impair the freedom of conscience and must also provide for the possibility of alternative service that is not connected with the armed forces and the Federal Border Guard.” In short: compulsory service is possible, but recognized conscientious objectors cannot and are not allowed to be called up for military service.

Human right to conscientious objection - The case of Ukraine

The BGH also dealt with the case law of the European Court of Human Rights. In 2011, in the Bayatyan v. Armenia case, the Court found that the right to conscientious objection is to be understood as part of Article 9 of the European Convention on Human Rights, which protects freedom of thought, conscience and religion. However, according to the Federal High Court, this norm falls short of the level of protection afforded by Article 4 (3) of the German constitution. In particular in the event of an emergency, i.e. also in the event of war, it is subject to further restrictions.

In previous decisions, the European Court of Human Rights had in fact generally limited itself to cases that claimed the right to conscientious objection in peacetime. There are therefore only a few statements from the ECtHR on how to proceed in such cases. One indication is given in the guidelines on Article 9 of the ECtHR issued by the ECtHR itself. Reference is made there to the judgment in Mammadov and Others v. Azerbaijan. The ECtHR concludes: “a mere reference to the ‘necessity of defending the territorial integrity of the State’ does not in itself constitute grounds capable of justifying the absence of an appropriate alternative service.” Applied to the situation in Ukraine, this would at least mean that Ukraine would have to demonstrate serious reasons to suspend this right. Which reasons are actually serious enough remains open due to the lack of case law from the ECtHR.

The Federal High Court takes this up and states, with reference to possible serious reasons: “If the life of a nation is threatened by war or other public emergency, any Contracting State may, in accordance with Article 15(1) ECHR, take measures derogating from the obligations laid down in the Convention to the extent strictly required by the situation and if the measures do not conflict with the Contracting Party’s other obligations under international law.” The Federal High Court thus justifies that Article 9 of the European Convention on Human Rights (ECHR) can also be suspended in the case of defense. However, the BGH does not examine this. Has Ukraine really formally suspended the right under Article 9 ECHR correctly and justified this accordingly?

There is a procedure for this. This stipulates that states parties to the ECHR must inform the Secretary General of the Council of Europe which articles of the ECHR are suspended due to an emergency situation. There is a list from Ukraine dated April 4, 2024 (Note verbale No. 31011/32-119-46585). The annex “Revised Notification about the derogation measures…” explains which articles have been suspended and which changes have been made. It states on the part of Ukraine: “Derogation under the previously defined Articles 3, 8(3), 9, 13, 20, 22, 24, 26, 27 of the Covenant and  Articles 4(3), 9, 13, 14, 16 of the Convention is withdrawn.”

This means that Ukraine has withdrawn the restrictions on the right to freedom of thought, conscience and religion, which were imposed with the introduction of martial law, in April 2024. Ukraine must therefore also guarantee the human right to conscientious objection. However, this right has been suspended since the start of the war. Conscientious objectors are prosecuted and sentenced to several years in prison. This also means that the Federal High Court has negligently omitted an essential piece of information here. The conclusion that the exception applies to Ukraine and that a conscientious objector can therefore be extradited is wrong.

Konkret bedeutet das, dass die Ukraine die Einschränkungen des Rechtes auf Gedanken-, Gewissens- und Religionsfreiheit, die mit Einführung des Kriegsrechts auferlegt wurden, im April 2024 zurückgezogen hat. Mithin muss die Ukraine auch das Menschenrecht auf Kriegsdienstverweigerung garantieren. Das Recht ist jedoch seit Kriegsbeginn ausgesetzt. Kriegsdienstverweiger*innen werden strafrechtlich verfolgt und zu mehreren Jahren Haft verurteilt. Das heißt auch, dass der BGH hier fahrlässig eine wesentliche Information unterschlagen hat. Die Folgerung, dass die Ausnahmeregelung für die Ukraine zutreffe, und daher ein Kriegsdienstverweigerer ausgeliefert werden könne, ist falsch.

Human right to conscientious objection - International Covenant

The Federal High Court also deals with the consequences arising from Article 18 (1) of the International Covenant on Civil and Political Rights (hereinafter referred to as the International Covenant). It recognizes that the UN Human Rights Committee, on the basis of the freedom of thought, conscience and religion in Article 18, gives everyone the right not to be compelled to use lethal force. The UN Human Rights Committee therefore considers this to be a general human right to conscientious objection. Article 18 (1) is even protected to apply in a state of emergency. Article 4 of the International Covenant clearly states this. Article 18 may therefore not be infringed in principle, not even in the event of war.

However, the Federal High Court then refers to Article 18 (3) of the International Covenant, according to which “restrictions provided for by law” are possible which are “necessary for the protection of public safety, order, health, morals or the fundamental rights and freedoms of others.” The Federal High Court thus justifies that this restriction is possible after all. It thus sets general restrictions against the fundamental human right and considers these to be of higher value.

The UN Human Rights Council, on the other hand, has issued a clear statement on this, which is not acknowledged by the Federal High Court. In the report “Conscientious objection to military service” of April 23, 2024, the Council concludes: “Under the International Covenant on Civil and Political Rights, the freedom of thought, conscience and religion permits no exception, as opposed to the manifestation of religion or belief, which may be subject to the restrictions provided for in article 18 (3). Moreover, article 4 (2) of the Covenant precludes derogation of the rights set out in article 18. Consequently, 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.” (paragraph 6)

The conclusions state: „States should give recognition to the right to conscientious objection to military service in their domestic legal systems. In accordance with international human rights law, the domestic legal basis should be:

(a) General, recognizing all forms of thought, conscience and religion protected under international human rights law;

(b) Applicable to all forms of military service, including voluntary service and service in military reserve forces, as thought, conscience and religion may change over time;

(c) Applicable in all contexts, including situations of armed conflict and during mobilization;

(d) Unconditional on the further implementation laws;

(e) Justiciable.“

Conclusions

We must therefore conclude that the Federal High Court (BGH) has made a decision that denies the human and fundamental right to conscientious objection, particularly in the event of war, even under false pretext. It will therefore be important to raise this issue again in further proceedings and thus achieve a reversal of the BGH decision.

But the decision means even more. It goes far beyond a purely legal dispute. We are already familiar with this from the political debate. Article 4(3) of the German constitution has repeatedly been interpreted restrictively and obstacles have been placed in the way of conscientious objectors. Only a political debate could achieve improvements here. In view of the war in Ukraine and the political demand for war capability, the Federal High Court is now joining in and postulating the fundamental right to conscientious objection as a fair-weather right that no longer applies in the event of war. This is hair-raising, extremely dangerous and urgently needs to be corrected.

Connection e.V.: Bundesgerichtshof greift Grundrecht auf Kriegsdienstverweigerung an. March 12, 2025

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