Martens Clause
Encyclopedia
The Martens Clause was introduced into the preamble to the 1899 Hague Convention
II – Laws and Customs of War on Land.
The clause took its name from a declaration read by Fyodor Fyodorovich Martens, the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words:
The Clause appears in a slightly modified form in the 1907 Hague conventions:
The Clause was introduced as a compromise wording for the dispute between the Great Power
s 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.
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 submissions to the court 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:
The Martens Clause was quoted in the following judicial rulings:
Hague Conventions (1899 and 1907)
The Hague Conventions were two international treaties negotiated at international peace conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the Second Hague Conference in 1907...
II – Laws and Customs of War on Land.
The clause took its name from a declaration read by Fyodor Fyodorovich Martens, the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words:
The Clause appears in a slightly modified form in the 1907 Hague conventions:
The Clause was introduced as a compromise wording for the dispute between the Great Power
Great power
A great power is a nation or state that has the ability to exert its influence on a global scale. Great powers characteristically possess military and economic strength and diplomatic and cultural influence which may cause small powers to consider the opinions of great powers before taking actions...
s who considered francs-tireurs
Francs-tireurs
Francs-tireurs – literally "free shooters" – was used to describe irregular military formations deployed by France during the early stages of the Franco-Prussian War...
to be unlawful combatants subject to execution on capture and smaller states who maintained that they should be considered lawful combatants.
Rupert Ticehurst, a Lecturer in Law, at King's College
King's College London
King's College London is a public research university located in London, United Kingdom and a constituent college of the federal University of London. King's has a claim to being the third oldest university in England, having been founded by King George IV and the Duke of Wellington in 1829, and...
School of Law in London, writes that:
The International Court of Justice
International Court of Justice
The International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
(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 submissions to the court 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:
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 NorwaySupreme Court of NorwayThe Supreme Court of Norway was established in 1815 on the basis of the Constitution of Norway's §88, prescribing an independent judiciary. It is located in Oslo and is Norway's highest court...
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) - 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
- Decision of the International Criminal Tribunal for the Former YugoslaviaInternational Criminal Tribunal for the former YugoslaviaThe International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, more commonly referred to as the International Criminal Tribunal for the former Yugoslavia or ICTY, is a...
on 8 March 1996 over the permission of the accusation during the process against Milan MartićMilan MarticMilan Martić is a Serbian politician, former president of the Republic of Serbian Krajina...
(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 IIProtocol IIProtocol II is a 1977 amendment protocol to the Geneva Conventions relating to the protection of victims of non-international armed conflicts. It defines certain international laws that strive to provide better protection for victims of internal armed conflicts that take place within the borders...
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 JusticeInternational Court of JusticeThe International Court of Justice is the primary judicial organ of the United Nations. It is based in the Peace Palace in The Hague, Netherlands...
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
- 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