Paola Goulart de Souza Spikes is a federal judge at the Rio de Janeiro Federal Court. She holds a Master of Laws from Universidade Federal Fluminense (2024) and is a PhD Candidate at Pontifícia Universidade Católica do Rio de Janeiro.
Conscientious Objection in Brazil’s Federal Constitution
The 1988 Brazilian Constitution allows for conscientious objection to military service based on religious belief or philosophical or political conviction unless the objector refuses to perform an alternative service established by law (Article 5, VIII).
This provision is a fundamental right and is considered an entrenched (irreversible) clause in accordance with Art. 60, §4º, IV, of the federal Constitution. The refusal to comply with an obligation imposed on everyone (such as a military service) or to render alternative service (if the latter is established by the law) can lead to the loss or suspension of political rights (Article 15, IV), including the right to vote and to be a candidate in elections, while sanctions remain in effect.
In the absence of a law providing for alternative service, conscientious objection can be exercised, and the objector will not be subject to compliance with an alternative service nor the suspension of political rights, considering that fundamental rights must be presumed to apply (Article 5, §1º).
In 2020, the Brazilian Supreme Court ruled on a case that set a binding precedent regarding conscientious objection for public employees. The Court held that a public employee can invoke conscientious objection, and the state must provide for it—for example, by offering alternative service that meets certain conditions of “reasonableness.”
Military Service in Brazil
Military service in Brazil is compulsory; every male is subject to it from 1 January of the year in which he turns 18 until 31 December of the year in which he turns 45. In case of war, this period may be altered according to government needs.
The initial period of compulsory military service lasts 12 months. The phases of military service are enlistment(mandatory by 30 June of the year a man turns 18), general selection (comprising medical exams, aptitude tests, and interviews), assignment (appointment to a military organization), complementary selection (comprising medical exams and interviews in the appointed military organization), and incorporation or enrolment (initiation of service in the appointed military organization). Brazilians enrolled in higher education or in their final year of high school, when called for initial military service, will be given priority for enrollment or incorporation into the Reserve Training Corps of the military garrison where they are attending courses, provided they meet other selection conditions set out in corps regulations.
Anyone who does not appear for general selection on time or who, having done so, leaves without completing it is considered a refuser and subject to a fine. Anyone selected and assigned for incorporation or enrollment who does not report to the assigned military organization within the set time limit or who, having done so, leaves before the official act of incorporation is declared noncompliant. And anyone who is on military duty and abandons it is considered a deserter. The law provides for criminal penalties for the latter two situations, which generally can result in up to two years of detention.
Penalties are also applied to conscientious objectors who do not fulfill their assigned alternative service or refuse to do so. They are considered noncompliant and, as mentioned previously, lose their political rights.
Additionally, those who do not fulfill their military obligations, including conscientious objectors who do not complete their alternative service, face numerous civil restrictions during the period they are subject to compulsory military service. These restrictions include prohibitions on obtaining a passport or an extension of its validity; entering as an official, employee, or associate of any institution, company, or association that depends on authorization by federal, state, territorial or municipal governments; taking entrance exams or enrolling in any educational establishment, public or private; obtaining a license for any industry or profession that requires registration, professional credentials, or enrollment for licensure; enrolling in a public office contest; and other civil activities.
Women and clergy are exempt from compulsory military service in times of peace but can be subject to other duties assigned to them by law. In the past, women and clergy have been permitted to voluntarily join the armed forces only as career military personnel or temporary military personnel through specific channels, subject to selection rules. Due to a recent change in the law, women will be allowed for the first time to perform initial (12-month) military service on a voluntary basis in 2026, provided they enlist for the service when they turn 18 in 2025.
Conscientious Objection During Peacetime
The federal Constitution allows the Armed Forces, in accordance with the law, to assign alternative service to those who in times of peace, after enlisting, claim conscientious objection to military service based on religious creed or philosophical or political belief.
Statute 8.239/1991 details alternative service to compulsory military service and allows administrative, welfare, philanthropic, or even economic activities as substitutes for military activities. Alternative service is to be provided either in the Armed Forces or in civil institutions, and the law requires considering both public interests and aptitudes of the conscientious objector in the assignment of alternative service.
The Ministry of Defense of Brazil adopted a regulation (Portaria n° 2.681/COSEMI 1992) that provides details on alternative service. This regulation requires the conscript who requests alternative service to submit a Declaração de Imperativo de Consciência (Declaration of Imperative of Conscience) after military enlistment. In that declaration, the objector states the nature of his objection and, if it is religious, the belief/religion to which he adheres. This declaration is subject to scrutiny since the commanders of the relevant military body may, at any time, open an investigation or request the submission of documents that clarify the applicant’s convictions. If the application is rejected, the conscript must reapply for the general selection for military service on equal terms with the other applicants.
According to the law, determining the type of alternative service to be rendered by an objector must take into consideration the physical, cultural, psychological, and moral aspects of the service. A service member who demonstrates incompatibility with the alternative service for which he was assigned may be reassigned, on a one-off basis, to another activity for which he has expressed an interest or ability. Alternative service lasts longer than compulsory military service: 18 months instead of 12 months.
It is worth mentioning that objectors do not have the right to perform alternative service in a strictly nonmilitary facility, like a senior center or a hospital. The regulations suggest that, during the allocation process, the objector should be accommodated in activities that suit him, considering the available options, but these options may potentially comprise only nonmilitary service in military facilities.
Students of medicine, pharmacy, dentistry, and veterinary medicine, or candidates to these courses, who have not completed their initial compulsory military service at the time of their class call-up due to deferment or exemption from incorporation must perform their military service in the year following the completion of their medical residency or post-graduate programs.
Despite these and other existing regulations regarding alternative service, Brazil has not yet implemented all the provisions necessary to enable practical realization of the right to alternative service. Consequently, all those who apply for alternative service receive certifications indicating that they have been exempted from alternative service. This means they are compliant with their obligation to military service and do not need to perform any additional duty.
Conscientious Objection During Wartime
Brazil’s federal Constitution explicitly addresses conscientious objection during peacetime only. It states that it “is within the competence of the Armed Forces, according to the law, to assign an alternative service to those who, in times of peace, after being enlisted, claim imperative of conscience, which shall be understood as originating in religious creed and philosophical or political belief, for exemption from essentially military activities” (Article 143, §1º). Thus, by a contrario sensu interpretation, it can be inferred that the Constitution does not allow conscientious objection in wartime and, consequently, the government shall grant no alternative service in times of the war.
The Brazilian legal community seems to have similarly reached the consensus that conscientious objection in times of war is not allowed. In addition, the Constitution permits restrictions on rights during wartime through explicit suspension, leading to the conclusion that conscientious objection could be among them.
Brazil has signed international treaties that could be invoked to support the right to conscientious objection in wartime, such as the International Covenant on Civil and Political Rights (Article 18). But Brazil’s Supreme Court has established that international human rights treaties that have not been incorporated through the special procedure set in Article 5º, §3º, of the Constitution—including the ICCPR—cannot prevail against provisions in the Brazilian Constitution. Therefore, in this conflict of rules, this treaty-based right to conscientious objection to military service during wartime in Brazil would not prevail. Moreover, because Brazil has not entered a war since World War II, no constitutional jurisprudence exists relative to the conflict between the constitutional standard and the international law standard regarding conscientious objection in wartime.
Conclusion
Brazil’s 1998 Constitution provides a foundational framework that recognizes the right to conscientious objection based on religious, philosophical, or political beliefs during peacetime. However, the practical realization of this right remains hindered by the incomplete implementation of alternative service. As a result, conscientious objectors receive certifications of exemption without having to perform any military service. During wartime, the Brazilian Constitution does not explicitly accommodate conscientious objection, and the judiciary has reinforced this stance by prioritizing constitutional provisions over international treaties in cases where the latter have not been incorporated through special procedure. This legal precedent effectively nullifies the possibility of conscientious objection in times of armed conflict, leaving no room for alternative service options for objectors during such periods, so long as current precedent remains in place.