The Martens Clause was introduced into the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land^[1]. The Hague Conventions were international treaties negotiated at the First and Second Peace Conferences at The Hague, Netherlands in 1899 and 1907, respectively, and were, along with the Geneva Conventions, among the first formal statements of the laws of war and war crimes in the nascent body of secular international...

The clause took its name from a declaration read by Fyodor Fyodorovich Martens,^[2] the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words:

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.^[3]

The Clause was introduced as a compromise wording for the dispute between the Great Powers who considered francs-tireurs to be unlawful combatants subject to execution on capture and smaller states who maintained that they should be considered lawful combatants.^[4][5] One of the hallmarks of contemporary great power status is permanent membership on the United Nations Security Council. ... The phrase Francs-tireurs was used to describe irregular military formations deployed by France during the early stages of the Franco-Prussian War (1870-1871) and from that usage is is sometimes used to refer more generally to guerrilla fighters who fight outside the laws of war[1]. The term... Unlawful combatant (also illegal combatant or unprivileged combatant) describes a person who engages in combat without meeting the requirements for a lawful combatant according to the laws of war as specified in the Third Geneva Convention. ...

Rupert Ticehurst, a Lecturer in Law, at King's College School of Law in London, writes that: Kings College London is the largest college of the University of London and one of a number of university institutions founded in England in the early 19th century: only the Universities of Oxford and Cambridge have royal charters predating that of Kings. ...

The problem faced by humanitarian lawyers is that there is no accepted interpretation of the Martens Clause. It is therefore subject to a variety of interpretations, both narrow and expansive. At its most restricted, the Clause serves as a reminder that customary international law continues to apply after the adoption of a treaty norm ^[6]. A wider interpretation is that, as few international treaties relating to the laws of armed conflict are ever complete, the Clause provides that something which is not explicitly prohibited by a treaty is not ipso facto permitted ^[7]. The widest interpretation is that conduct in armed conflicts is not only judged according to treaties and custom but also to the principles of international law referred to by the Clause.

The International Court of Justice (ICJ) in their advisory opinion on the Legality of the Threat or Use of Nuclear Weapons issued on 8 July 1996, had to consider the general laws of armed conflict before they could consider the specific laws relating to nuclear weapons. Several different interpretations of this clause were presented in oral and written submissions to the ICJ. Although the ICJ advisory opinion did not provide a clear understanding of the Clause, several of the provided an insight into its meaning.^[3] The International Court of Justice (known colloquially as the World Court or ICJ; French: ) is the primary judicial organ of the United Nations. ... The Legality of the Threat or Use of Nuclear Weapons[1] was an advisory opinion handed down by the International Court of Justice (ICJ) on 8 July 1996. ...

The evidence that Ticehurst presents is that just as in 1899 there was a disagreement between the great powers and the minor powers that lead to the formulation of the Clause, so in 1996 a similar divergence of views exists between the declared nuclear powers and the non nuclear powers with the nuclear powers taking a narrow view of the Clause and the non nuclear powers taking a more expansive view.^[3]

Ticehurst concludes that:

... By refusing to ratify treaties or to consent to the development of corresponding customary norms, the powerful military States can control the content of the laws of armed conflict. Other States are helpless to prohibit certain technology possessed by the powerful military States. ... the Martens Clause establishes an objective means of determining natural law: the dictates of the public conscience. This makes the laws of armed conflict much richer, and permits the participation of all States in its development. The powerful military States have constantly opposed the influence of natural law on the laws of armed conflict even though these same States relied on natural law for the prosecutions at Nuremberg. The ICJ in its Advisory Opinion did not clarify the extent to which the Martens Clause permits notions of natural law to influence the development of the laws of armed conflict. Consequently, its correct interpretation remains unclear. The Opinion has, however, facilitated an important debate on this significant and frequently overlooked clause of the laws of armed conflict.^[3]

Judicial review

Several national and international courts have considered the Martens Clause when making their judgements. In none of these cases however have the laws of humanity or the dictates of the public conscience been recognised as new and independent right. The clause served rather as general statement for humanitarian principles as well as guideline to the understanding and interpretation of existing rules of international law.

The Martens Clause was quoted in the following judicial rulings:

• Decision of the Supreme Court of Norway on 27 February 1946 in appeal proceedings against Karl-Hans Hermann Klinge , Kriminalassistent of the Gestapo (confirmation of the death sentence imposed by the first instance)^[8]
• Decision of the US military tribunal III in Nuremberg on 10 February 1948 in the case United States v. Krupp
• Decision of the Netherlands court of cassation on 12 January 1949 in the procedure against SS-Obergruppenführer Hanns Rauter, general commissioner for the safety organization in the Netherlands from 1940 to 1945
• Decision Brussels military courts (Conseil de guerre de Bruxelles) in the K.W.. case on 8 February 1950^[9][10]
• Decision of the International Criminal Tribunal for the Former Yugoslavia on 8 March 1996 over the permission of the accusation during the process against Milan Martić (case IT-95-11, decision IT-95-11-R61)
• Decision of the Constitutional Court of Colombia of 18 May 1995 for the constitutionality of Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. (decision C-225/95)
• The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons issued on 8 July 1996
• Judgement of the German Federal Constitutional Court on 26 October 2004 for the compatibility of the expropriations in the former Soviet zone of occupation between 1945 and 1949 with international law (decision BVerfG, 2 BvR 955/00 of 26.10.2004)

The Supreme Court of Norway, located in Oslo, is Norways most superior court. ... February 27 is the 58th day of the year in the Gregorian calendar. ... February 10 is the 41st day of the year in the Gregorian calendar. ... January 12 is the 12th day of the year in the Gregorian calendar. ... February 8 is the 39th day of the year in the Gregorian calendar. ... The Tribunal building in The Hague. ... March 8 is the 67th day of the year (68th in leap years) in the Gregorian calendar. ... Milan Martić (born 18 November 1954, near Knin, Yugoslavia) is an ethnic Serbian politician from Croatias Serbian minority. ... A Constitutional Court is a high court found in many countries which deals primarily with constitutional law. ... May 18 is the 138th day of the year (139th in leap years) in the Gregorian calendar. ... Protocol II: Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts. ... August 12 is the 224th day of the year (225th in leap years) in the Gregorian calendar. ... The International Court of Justice (known colloquially as the World Court or ICJ; French: ) is the primary judicial organ of the United Nations. ... The Legality of the Threat or Use of Nuclear Weapons[1] was an advisory opinion handed down by the International Court of Justice (ICJ) on 8 July 1996. ... July 8 is the 189th day of the year (190th in leap years) in the Gregorian calendar. ... October 26 is the 299th day of the year (300th in leap years) in the Gregorian calendar, with 66 days remaining. ...

Reference

• Pustogarov, Vladimir Vasilievich. Fyodor Fyodorovich Martens (1845-1909) - a humanist of modern times, 30 June 1996, International Review of the Red Cross no 312, p.300-314
• Ticehurst, Rupert. The Martens Clause and the Laws of Armed Conflict 30 April, 1997, International Review of the Red Cross no 317, p.125-134 ISSN 1560-7755

June 30 is the 181st day of the year (182nd in leap years) in the Gregorian calendar, with 184 days remaining. ... 1996 (MCMXCVI) was a leap year starting on Monday of the Gregorian calendar, and was designated the International Year for the Eradication of Poverty. ... April 30 is the 120th day of the year in the Gregorian calendar (121st in leap years), with 245 days remaining. ... ISSN, or International Standard Serial Number, is the unique eight-digit number applied to a periodical publication including electronic serials. ...

Further reading

• Antonio Cassese. The Martens Clause: Half a Loaf or Simply Pie in the Sky?, 2000, Academy of European Law online, a joint partnership of the Jean Monnet Center at NYU School of Law and the Academy of European Law at the European University Institute. ISSN 0938-5428
• Theodor Meron.The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, The American Journal of International Law, Vol. 94, No. 1 (Jan., 2000), pp. 78-89 ISSN 0002-9300
• Theodor Meron, On Custom and the Antecedents of the Martens Clause in Medieval and Renaissance Ordinances of War, Recht zwischen Umbruch und Bewahrung : Völkerrecht, Europarecht, Staatsrecht : Festschrift für Rudolf Bernhardt p. 173-177 (Ulrich Beyerlin et al., eds., 1995).
• Vladimir V. Pustogarov: The Martens Clause in International Law. In: Journal of the History of International Law. 1(2)/1999, Martinus Nijhoff Publishers, S. 125-135, ISSN 1388-199X
• Ivan Shearer. The Future of Humanitarian Intervention: Rules of conduct during humanitarian interventions on the website of American Diplomacy

ISSN, or International Standard Serial Number, is the unique eight-digit number applied to a periodical publication including electronic serials. ... ISSN, or International Standard Serial Number, is the unique eight-digit number applied to a periodical publication including electronic serials. ... ISSN, or International Standard Serial Number, is the unique eight-digit number applied to a periodical publication including electronic serials. ...

Footnotes

1. ^ Laws of War: Laws and Customs of War on Land (Hague II); July 29, 1899. contained in the Avalon Project archive at Yale Law School
2. ^ Vladimir Pustogarov, Fyodor Fyodorovich Martens (1845-1909) - a humanist of modern times, 30 June 1996 International Review of the Red Cross no 312, p.300-314
3. ^ ^{a b c d} Rupert Ticehurst The Martens Clause and the Laws of Armed Conflict 30 April, 1997, International Review of the Red Cross no 317, p.125-134
4. ^ Rupert Ticehurst (references) in hist footnote 1 cites The life and works of Martens are detailed by V. Pustogarov, "Fyodor Fyodorovich Martens (1845-1909) — A Humanist of Modern Times", International Review of the Red Cross (IRRC), No. 312, May-June 1996, pp. 300-314.
5. ^ Rupert Ticehurst Rupert Ticehurst (references) in hist footnote 2 cites F. Kalshoven, Constraints on the Waging of War, Martinus Nijhoff, Dordrecht, 1987, p. 14.
6. ^ Rupert Ticehurst (references) in hist footnote 4 cites C. Greenwood, "Historical Development and Legal Basis", in Dieter Fleck (ed.), The Handbook of Humanitarian Law in Armed Conflicts, Oxford University Press, Oxford/New York, 1995, p. 28 (para. 129).
7. ^ Rupert Ticehurst (references) in hist footnote 5 cites Y. Sandoz, C. Swinarski, B. Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva, 1987, p. 39 (para. 55); N.Singh and E. McWhinney, Nuclear Weapons and Contemporary International Law, 2nd ed., Martinus Nijhoff, Dordrecht, 1989, pp. 46-47.
8. ^ Trial of Kriminalassistent Karl-Hans Hermann Klinge
9. ^ Cassese, A. The Martens Clause: Half a Loaf or Simply Pie in the Sky? European Journal of International Law. 2000; 11: 187-216
10. ^ Scobbie Iain. Gaza Withdrawal paper p.9