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The Martens Clause ( pronounced ) is an early
international law International law, also known as public international law and the law of nations, is the set of Rule of law, rules, norms, Customary law, legal customs and standards that State (polity), states and other actors feel an obligation to, and generall ...
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. The Clause was introduced as compromise wording for the dispute between the
Great Power A great power is a sovereign state that is recognized as having the ability and expertise to exert its influence on a global scale. Great powers characteristically possess military and economic strength, as well as diplomatic and soft power ...
s who considered francs-tireurs to be
unlawful combatants An unlawful combatant, illegal combatant, or unprivileged combatant/belligerent is a person who directly engages in armed conflict and is considered a terrorist and therefore is deemed not to be a lawful combatant protected by the Geneva Conv ...
subject to execution on capture and the smaller states who maintained that they should be considered lawful combatants. It reads as follows: __NOTOC__ The Clause appears in a slightly modified form in the 1907 Hague conventions: The clause did not appear in the Geneva Conventions of 1949, but was it included in the additional protocols of 1977. It is in article 1 paragraph 2 of
Protocol I Protocol I (also Additional Protocol I and AP I) is a 1977 amendment Protocol (diplomacy), protocol to the Geneva Conventions concerning the protection of civilian casualty, civilian victims of international war, including "armed conflicts in ...
(which covers international conflicts), and the fourth paragraph of the preamble to Protocol II (which covers non-international conflicts). The wording in both is identical but slightly modified from the version used in the Hague Convention of 1907:


Analysis

In its commentary (Geneva 1987), the ICRC states that although the Martens Clause is considered to be part of customary international law, 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

The
International Court of Justice The International Court of Justice (ICJ; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...
(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) * 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 1950Scobbie Iain.
Gaza Withdrawal paper
'' p.9
* Decision of the
International Criminal Tribunal for the Former Yugoslavia The International Criminal Tribunal for the former Yugoslavia (ICTY) was a body of the United Nations that was established to prosecute the war crimes in the Yugoslav Wars, war crimes that had been committed during the Yugoslav Wars and to tr ...
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 The International Court of Justice (ICJ; , CIJ), or colloquially the World Court, is the only international court that Adjudication, adjudicates general disputes between nations, and gives advisory opinions on International law, internation ...
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.

' on the website of ttp://www.unc.edu/depts/diplomat/static/about.html 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


References

{{Authority control Hague Conventions of 1899 and 1907 International humanitarian law treaties Treaties concluded in 1899 Treaties entered into force in 1910 Eponymous treaties