Conscientious objection to compulsory military service in Colombia: debates on its legal basis

Abstract

This article analyzes, from a constitutional perspective, the legal basis for conscientious objection to compulsory military service in Colombia and proposes an alternative methodology for its valuation. To this end, a jurisprudential analysis of judgment C-370/2019 is first made, which outlined the notion of conscientious objection as a nominated and autonomous constitutional right, governed by the rules defined in judgment C-728/2009. Secondly, a critical reading of these jurisprudential rules is proposed, evidencing important argumentative gaps of the figure and the methodology proposed by the Constitutional Court of Colombia to resolve the particular requests for objection. Thirdly, conscientious objection is presented as a tool that materializes fundamental rights, such as freedom of conscience, and that has as its core the tension between legal assets that can be protected by the legal system. Subsequently, it is proposed to resolve the aforementioned legal tension through the judicial application of a methodology based on the proportionality test. Finally, the importance of the proposed methodology for the national context is emphasized, since it has, like civil disobedience for Biondo (2016) and due to the historical framework of the Colombian armed conflict, conscientious objection to military service can have a stabilizer of the legal system. In conclusion, evaluating applications for conscientious objection based on the proposed methodology would allow a more objective evaluation of the tension between legal assets that can be protected, thus differentiating the treatment of objections that can play a stabilizing role in the legal system.