Council of Europe dismisses case on conscientious objection rights of Defence Forces
Posted on 18th March 2021 at 20:09
Union had argued members’ rights being violated by lack of recognition in Irish law
The Council of Europe has dismissed a claim that the rights of Irish Defence Forces members are being violated because Irish law does not recognise their right to seek discharge for conscientious objection.
The decision by the European Committee of Social Rights (ECSR), published this week, found the human rights of Irish personnel were adequately protected under the European Social Charter, and that the restriction imposed on discharge during periods of emergency was “prescribed by law with sufficient clarity” and thus compatible with the charter.
PDForra, which represents 6,500 enlisted personnel, last year brought a case to the Council of Europe seeking that the Irish State recognise the right of members of the Defence Forces to register as conscientious objectors.
The case, which was lodged through the European Organisation of Military Associations and Trade Unions (Euromil), argued that the situation in Ireland constituted a violation of the European Social Charter because there is no provision in Irish law enabling members to discharge from the armed forces on grounds of conscientious objection.
A number of EU states recognise the right to conscientious objection for professional military personnel, but Ireland has no provision to allow people to solely seek discharge on this basis.
Euromil argued that the failure to regulate such a discharge was contrary to the European charter.
However, the committee ruled that “having regard to the fact that the restriction imposed on discharge from the Defence Forces during a period of emergency is prescribed by law with sufficient clarity, that it pursues a legitimate aim and can be deemed to be necessary in a democratic society for reasons of national security” the situation was compatible with the charter.
It noted that under Article F of the charter, “in time of war or public emergency”, the state would be allowed to take measures “derogating from its obligations to the extent strictly required by the exigencies of the situation”.
Article G also permits restrictions which are “prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health or morals”, said the committee.
The committee acknowledged that the 90-day notice period that can be imposed before a discharge becomes effective was “rather long”, but that this period “cannot be regarded as excessive in the context of a freely concluded contract with the Defence Forces” and that 90 days was the “absolute maximum” time. This could be shorter as requests for discharged are processed with “all convenient speed”, it said.
PDForra general secretary Gerard Guinan said the association accepted the ruling’s provision that personnel may be held in service during an emergency but reiterated his concerns around members not being able, nor having the mechanisms, to register as conscientious objectors.
“PDForra believe that securing rights for members, including ones that are likely to be used infrequently, is central to our mission to advance the cause of our members,” said Mr Guinan.
He also echoed the findings of a recent Organisation for Security and Co-operation in Europe report which states the right to discharge on the grounds of conscientious objection should be available both prior to and during military service.
“Unfortunately, as implicitly recognised by the committee, the charter does not provide to consider this aspect of our complaint,” he said.
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