Conscription in Armed Conflicts

The author of this blog is Ritika Sharma. She is the Founder of the blog, HUMAN.DROITS, and is also an LL.M. Graduate from the Geneva Academy of International Humanitarian Law and Human Rights. She can be reached at ritika4523@gmail.com. 

A soldier with rifle

Several international conventions and protocols lay down the rights of civilians who get trapped while being present in a location prone to armed conflict. In armed conflicts, whether international or non-international, the livelihood of civilians i.e., their mental and physical well-being is in great peril. Undoubtedly, this risk to life is more when they have to stand against the enemy group, carrying arms and weapons in their hands. We all know that each country has professional servicepersons or military who step-in in the cases of conflicts. However, there is another category of persons who are called upon to give their service whenever the laws or authorities require them to do so. They are called 'conscripts', called upon for the service of 'conscription'. 

Members who serve in armed conflicts
Evidently, armed conflicts are not just limited to the service from the professionally trained service persons who take up arms to directly involve in the conflicts. Apart from the professional servicepersons, the following are some other categories of persons who back the military:

• Civilian workforce- They include the ones who indirectly take part in the armed conflicts by aiding the armed groups. Examples are medical professionals, cooks, etc.

• Reservists- These are the civilians who get specialised training with the armed forces. They take part in the combats in case of shortages of army personnel. 

• Conscripts- Conscripts are the civilians, with or without any special training, who are called upon to take part in the armed conflict. This is also another way of filling up the positions of combatants when there aren't enough professional servicepersons in the army. Some of the nations which have mandated conscription include Russia, Israel, Brazil, Eritrea, North Korea, South Korea, Sweden, etc. 

Human Rights of Conscripts
A case was brought before the European Court of Human Rights where a conscript claimed that he was ill-treated during his military service. He alleged the following acts of 'ill-treatment':

• Stripping off his clothes,
• A threat by placing the gun on his head,
• Forced to wear a military uniform in extremely hot weather,
• Physical abuse of the belt buckle,
• Received the threat of rape, etc.

The name of the case is Lyalyakin v. Russia (2015). The Court held that the act of undressing the conscript comes within the parameters of Article 3 of the European Convention on Human Rights and declined to examine other aspects of the torture on account of the ineffective investigation into the case. 

At this juncture, it is crucial to illuminate some of the essential economical and political rights that are available to conscripts under different conventions. Following are some rights that are available to the conscripts:

• Prohibition of torture, inhuman or degrading treatment- The Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment, UDHR (Article 5), and ICCPR (Article 7) are the instruments that ensure this right to every person including the conscripts. 
• Right to life- Apart from the domestic and regional conventions, the right to life is guaranteed under UDHR (Article 3) and ICCPR (Article 6). 
• Freedom of Expression- This right is granted under UDHR (Article 19), ICCPR (Article 19), and regional conventions such as American Convention on Human Rights (Article 13), European Convention on Human Rights (Article 10), and Banjul Charter (Article 9). 
• Right not to be forced into compulsory labour- The provisions that advocate this right include European Convention on Human Rights (Article 4), and ICCPR (Article 8). The obligation to provide services as conscripts itself seems to be a violation of this right. However, compulsory military service is expressly excluded from the ambit of 'forced labour'. For example, clause 3(c) of Article 8 of the ICCPR stipulates, "forced or compulsory labour shall not include any service of a military character and, in countries where conscientious objection is recognized, any national service required by the law of conscientious objectors". Therefore, within the ambit of this right, the conscripts raise complaints claiming their right to freedom of religion encompassing the right to conscientious objection to military service, freedom from discrimination, etc.
• Freedom of conscientious objection- In the case of Feti Demirtas v. Turkey (2012), since the applicant was not given an opportunity to perform alternative service, his act of forcible conscription was considered to be a violation of Article 9 of the European Convention on Human Rights. This right is based on the right to the freedom of thought, conscience, and religion. 
• Right to respect for private and family life and correspondence- This right includes the right to the security of personal details of the conscripts such as photographs, sexual orientation, medical records, etc. UDHR ( Article 12), and European Convention on Human Rights (Article 8) encapsulate the right to private life. 

Other rights include the right to a fair trial, the right to liberty and security, the right to freely assemble and form associations, and the right to marry and build a family.

Apart from arguments that there is the absence of extra-territorial jurisdiction of the Conventions such as the Convention against Torture and Other Cruel, Inhumane or  Degrading Treatment, these rights fail to reach the conscripts when they are engaged in special missions as army personnel. 

Not every case is Lyalyakin's case where the conscript gets some relief. In many instances, the unavailability of proper justice and redressal mechanism for the conscripts result in grievous injuries or even their death. 

Impact of Ukraine-Russia conflict on Conscription
Due to the current scenario of the Ukraine-Russia conflict, several countries have discerned the need for a robust military. This has augmented the inclusion of the concept of conscription for a few nations, while some others who were on the path to renouncing this mode of filling up their armies are now backtracking. 

One example of such a country is Switzerland, which is now stepping over the idea of making service in the military a compulsion for their women too. Another example is the Scandinavian nation- Sweden. The conscription approach in Sweden was abolished in the year 2010, however, was re-introduced in 2017 owing to the surging military activities of Russia. 

Can children become conscripts?
In armed conflicts, often the rights of vulnerable sections of society are overlooked. To address this problem, the General Assembly adopted the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. The Protocol aims at prohibiting the inclusion of children (anyone below 18 years of age) in conscriptions.

Currently, 172 countries have ratified the Optional Protocol. Countries that have signed but not ratified the Protocol are Haiti, Iran, Lebanon, Liberia, Nauru, Solomon, Somalia, and Zambia. There are 17 nations that have not even signed the Protocol. Some of these include UAE, Trinidad and Tobago, Palau, Barbados, etc.

Role of women in conscription
With Russia's invasion of Ukraine, there are discussions around the conscription of Ukrainian women by the government of Ukraine. However, it is pertinent to note that women are not eligible to be conscripted in most countries. They are exempted from conscription in countries such as Brazil, Iran, etc. In Cuba also, military service is compulsory for men, while it is voluntary for women to get themselves enroll in professional military service. Men are given military training and then get the status of reservists. 

The countries where military service is compulsory for women are Israel, Guinea Bissau, Mali, Norway, etc. Some countries adopt the policy of selective conscription for women, North Korea being one of them. 

Final Remarks
Conscriptions are the consequence of rising instances of armed conflicts and fear of growing these destructive combats. Citizens of the countries such as Israel and Switzerland have voiced their opinions against mandatory conscriptions, yet the burgeoning concerns around rifts between the countries shift their focus back to the adoption of conscriptions as a means to expand the armies.

When they have to (involuntarily) render their services as recruits in armies, it should be the bare minimum that they are not denied their human rights. The following lines by the European Court of Human Rights in Beker v. Turkey (2009) emphasise the importance of the duty of government and relevant authorities in this regard. 

"Conscripts are entirely in the hands of the State and any events in the army lie wholly, or in large part, within the exclusive knowledge of the authorities. Therefore, the State is also under an obligation to account for any injuries or deaths occurring in the army".

References:
https://help.elearning.ext.coe.int/course/view.php?id=5842 
https://childrenandarmedconflict.un.org/tools-for-action/opac/ 
https://www.indiatoday.in/interactive/longread/11-countries-where-military-service-is-compulsory-129-17-06-2022