CHAIRMAN: Mr. Nisuke Ando (Japan)
VICE-CHAIRMEN: Mr. Vojin Dimitrijevic (Yugoslavia), Mr. Omran El
Shafei (Egypt), Mr. Bertill Wennergren (Sweden)
RAPPORTEUR: Mr. Francisco Jose Aguilar Urbina (Costa Rica)
MEMBERS: Mr. Marco Tulio Bruni Celli (Venezuela), Miss Christine
Chanet (France), Ms. Elizabeth Evatt (Australia), Mr. Janos Fodor
(Hungary), Mr. Laurel B. Francis (Jamaica), Mr. Kurt Herndl
(Austria), Mrs. Rosalyn Higgins (United Kingdom), Mr. Rajsoomer
Lallah (Mauritius), Mr. Andreas V. Mavrommatis (Cyprus), Mr. Birame
Ndiaye (Senegal), Mr. Fausto Pocar (Italy), Mr. Julio Prado Vallejo
(Ecuador), Mr. Waleed Sadi (Jordan)
At the forty-ninth session (1273rd meeting), held on 25 October
1993, the Chairperson informed the Committee of the death of one of
its members, Mr. Janos Fodor (Hungary).
All the members attended the forty-ninth session.
||A.R.U. v. Neth., Comm. 509/1992,
U.N. Doc. A/49/40, Vol. II, at 327 (HRC 1993)
||Report of the Human Rights
Committee, U.N. GAOR, 49th Sess., Supp. No. 40, U.N. Doc. A/49/40,
Part II, Annex X, sect. Q, at 327 (Sep.21, 1994)
1. The author of the
communication is Mr. A.R.U., a Dutch citizen, presently residing in Delft,
the Netherlands. He claims to be a victim of a violation by the Netherlands
of articles 4, 5, 6, 7, 14, 18 and 26 of the International Covenant on Civil
and Political Rights. He is represented by counsel.
The facts as submitted by the author:
2.1 In early 1987, the author received notice that he would be drafted for
military service later that year. He objected, arguing that by performing
military service, he would become an accessory to the commission of crimes
against peace and the crime of genocide, as he would be forced to
participate in the preparation for the use of nuclear weapons. His
objections were rejected by the authorities.
2.2 Subsequently, the author initiated court action by summary procedure,
requesting the Court for an injunction against drafting him for military
service, or, alternatively, for a postponement until the merits of his
objections against military service could be decided. On 31 March 1987, the
president of the The Hague District Court (Arrondissementsrechtbank)
rejected his request, considering that the request was premature, since the
author's objections concerned an eventual nuclear war, and not military
service as such. On 28 April 1988, the The Hague Court of Appeal (Gerechtshof)
rejected the author's appeal, considering that he could have filed an
application under the Act on Conscientious Objection to Military Service
(Wet Gewetensbezwaren Militaire Dienst), which would have allowed an
evaluation of the authors' objections with a view to exempting him from
military service. The Supreme Court (Hoge Raad), on 12 January 1990,
dismissed the author's appeal in cassation.
2.3 From the judgment of the Court of Appeal it appears that, prior to his
court action, the author had requested the State to be exempted from
military service under article 15 of the Military Service Act (Dienstplichtwet),
which can be invoked in 'special cases'. This request was dismissed and, on
18 December 1986, the author's appeal was rejected by the Council of State (Raad
van State), the highest relevant judicial instance. On 3 September 1987, he
was arrested for not reporting for military service. On 3 December 1987, the
Military Court (Krijgsraad) sentenced him to six months' imprisonment for
refusal to obey military orders. The author appealed this judgment, and the
Supreme Military Court (Hoog Militair Gerechtshof) rendered its judgment on
16 March 1988. However, no information is provided as to the contents of
3.1 The author contends that military service in the Netherlands, within the
framework of the NATO defence strategy, which is based on the threat with
and the use of nuclear weapons, violates articles 6 and 7 of the Covenant.
He submits that the possession of nuclear arms and the preparation for the
use of nuclear weapons is in violation of public international law and
amounts to a crime against peace and a conspiracy to commit genocide. In
this connection, he refers inter alia to General Comment 14 of the Human
Rights Committee on article 6 of the Covenant. He argues that the army of
the Netherlands is a criminal organisation, since it is preparing a crime
against peace by envisaging the use of nuclear weapons.
3.2 The author argues that by doing military service his life is being
endangered, because of measures of retaliation in case of the use of nuclear
weapons by NATO. He also submits that the use of nuclear weapons by NATO,
through its consequences such as fall-out and nuclear winter, directly
affects his right to life and his right not to be subjected to torture or to
cruel, inhuman or degrading treatment. He argues that the Human Rights
Committee should provide protection to such threat of a violation of these
rights. He further claims that to be forced to become an accessory to crimes
against peace and to violations of the right to life and the right not to be
tortured, makes him a victim of the violation of these articles.
3.3 The author also contends that he is a victim of a violation of articles
14 and 26 of the Covenant, because he has allegedly been denied fair
treatment before the Supreme Court, which held that he was not entitled to
seek a remedy from a civil court, since he could have filed an application
under the Conscientious Objection Act. The author argues, however, that this
law was created for conscientious objections to lawful obligations, arising
from military service, not for objections to obligations that are illegally
imposed and violate international law.
3.4 The author further claims to be a victim of article 18 juncto 5 of the
Covenant. By considering that the author should have applied for alternative
service under the Conscientious Objection Act, the Supreme Court limited the
author's objections with regard to the illegal character of the military
service to a matter of conscience. The author, however, argues that article
18 of the Covenant only applies in case of a conflict between one's
conscience and a valid legal obligation. Thus, according to the author, the
Supreme Court did not correctly interpret article 18 of the Covenant,
thereby preventing him from protesting the participation by the defence
force of the Netherlands in a conspiracy to commit a crime against peace and
the crime of genocide.
Issues and proceedings before the Committee:
4.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
4.2 As regards the author's claim that he is a victim of a violation by the
State party of articles 6 and 7 of the Covenant, the Committee observes that
the author cannot claim to be a victim of a violation of articles 6 and 7 by
mere reference to the requirement to do military service FN1. This part of
the communication is therefore inadmissible under article 3 of the Optional
See the Committee's decisions in communications Nos. 401/1990 ( J.P.K. v.
the Netherlands ) and 403/1990 ( T.W.M.B. v. the Netherlands ), declared
inadmissible on 7 November 1991.
4.3 The Committee considers that the author has failed to substantiate, for
purposes of admissibility, his claim that he is a victim of violations of
articles 14, 18 and 26 of the Covenant. This part of the communication is
therefore inadmissible under article 2 of the Optional Protocol.
5. The Human Rights Committee therefore decides:
(a) that the communication is inadmissible under articles 2 and 3 of the
(b) that this decision shall be communicated to the author and, for
information, to the State party.