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The 'Martens Clause' was introduced into the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land^[1].
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:
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.^[3][4]
Rupert Ticehurst, a Lecturer in Law, at King's College School of Law in London, writes that:
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.
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:

Contents

Judicial review

Reference

Further reading

Footnotes

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)^[5]

★ 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^[6][7]

★ 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)

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

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.

★ 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

★ 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,

★ Ivan Shearer. ''The Future of Humanitarian Intervention: Rules of conduct during humanitarian interventions'' on the website of American Diplomacy

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. 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.
4. Rupert Ticehurst Rupert Ticehurst (references) in hist footnote 2 cites F. Kalshoven, ''Constraints on the Waging of War'', Martinus Nijhoff, Dordrecht, 1987, p. 14.
5. Trial of Kriminalassistent Karl-Hans Hermann Klinge
6. Cassese, A. ''The Martens Clause: Half a Loaf or Simply Pie in the Sky?'' European Journal of International Law. 2000; 11: 187-216
7. Scobbie Iain. ''Gaza Withdrawal paper'' p.9