Martens Clause Explained

The Martens Clause (pronounced pronounced as //mar'tɛnz//) is an early international law concept first introduced into the preamble of the 1899 Hague Convention II  - Laws and Customs of War on Land. There are differing interpretations of its significance on modern international law, with some scholars simply treating the clause as a reminder international customary law still applies after a treaty is ratified while others take a more expansive approach where the clause provides that because international treaties cannot be all encompassing, states cannot use that as a justification for an action.

Clause

The clause took its name from a declaration read by Friedrich Martens, the delegate of Russia at the Hague Peace Conferences of 1899.^[1] The Clause was introduced as compromise wording for the dispute between the Great Powers who considered francs-tireurs to be unlawful combatants subject to execution on capture and the smaller states who maintained that they should be considered lawful combatants.^{[2] [3]} It reads as follows:

The Clause appears in a slightly modified form in the 1907 Hague conventions:

The clause did not appear in the Geneva Conventions of 1949,^[4] but was it included in the additional protocols of 1977.^[5] It is in article 1 paragraph 2 of Protocol I (which covers international conflicts),^[6] and the fourth paragraph of the preamble to Protocol II (which covers non-international conflicts).^[7] The wording in both is identical but slightly modified from the version used in the Hague Convention of 1907:^[8]

Analysis

In its commentary (Geneva 1987), the ICRC states that although the Martens Clause is considered to be part of customary international law,^[9] the plenipotentiaries considered its inclusion appropriate because:

Rupert Ticehurst, a Lecturer in Law, at King's College School of Law in London, wrote that:

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.

Ticehurst concludes that:

ICJ advisory opinion on Nuclear Weapons

See main article: articles and Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons. 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 Martens's 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 submissions to the court provided an insight into its meaning.

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)^[10]
• 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^{[11] [12]}
• 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)

Further reading

• .
  • 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
• Pustogarov, Vladimir Vasilievich. The Martens Clause in International Law. In: Journal of the History of International Law. 1(2)/1999, Martinus Nijhoff Publishers, S. 125 - 135,
• Shearer, Ivan. The Future of Humanitarian Intervention: Rules of conduct during humanitarian interventions on the website of American Diplomacy
• 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).
• 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

Notes and References

1. Book: Cassese, Antonio. International Law . Oxford University Press . Oxford . 2005 . 2 . 160–161 .
2. 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.
3. Rupert Ticehurst (references) in hist footnote 2 cites F. Kalshoven, Constraints on the Waging of War, Martinus Nijhoff, Dordrecht, 1987, p. 14.
4. https://www.loc.gov/rr/frd/Military_Law/pdf/Commentary_GC_Protocols.pdf ICRC Commentary on the Additional Protocols to the Geneva Conventions
5. https://www.loc.gov/rr/frd/Military_Law/pdf/Commentary_GC_Protocols.pdf ICRC Commentary on the Additional Protocols to the Geneva Conventions
6. Web site: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
7. Web site: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.
8. ICRC, Commentary on the Additional Protocols to the Geneva Conventions, p. 38 ¶ 56
9. ICRC, Commentary on the Additional Protocols to the Geneva Conventions, p. 39 ¶ 56; p 436, footnote 29
10. http://www.ess.uwe.ac.uk/WCC/klinge.htm Trial of Kriminalassistent Karl-Hans Hermann Klinge
11. Cassese, A. The Martens Clause: Half a Loaf or Simply Pie in the Sky? European Journal of International Law. 2000; 11: 187 - 216
12. Scobbie Iain. Gaza Withdrawal paper p.9