Martens Clause Critique

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INTRODUCTION

In the years since formulation of Martens Clause, it has

been restated in many humanitarian law treaties that regulate the

means and method of warfare. It has been relied upon the

Nuremburg jurisprudence, addressed by the International Court of

Justice and human rights bodies. It was reiterated in the 19 9

!ene"a Con"entions for the #rotection of $ictims of %ar, the 19&&

'dditional #rotocols to those con"entions, and the #reamble to

the Con"ention on prohibition and (estrictions of the use of

Certain Con"entional %eapons, though in slightly different

"ersions. 1

)he Clause was introduced as a compromise wording for the

dispute between the !reat #owers who considered francs*tireurs to

be unlawful combatants subject to e+ecution on capture and

smaller states who maintained that they should be considered

lawful combatants. )he larger military powers of -urope were of

the opinion that such people should be treated as francs-tireurs

and subject to e+ecution. )he smaller -uropean states felt that

lawful combatant status should be granted to resistance

1 )heodore Meron, )he Martens Clause, #rinciples of /umanity, and0ictates of #uplic Conscience , )he 'merican Journal of International2aw, $ol. 9 . No.1 3January, 4445

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fighters.)he deadloc8 was not o"ercome until the (ussian delegate

to the 1:99 International #eace Conference, ;yodor ;yodorich "on

Martens, suggested a compromise position which decreed that,

until a more complete set of laws of armed conflict could be

decided upon, the community of nations was not to assume that the

law was silent on matters that were not codified in treaty form.

Moreo"er,

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minor wording modifications, in "arious subse>uent international

humanitarian law instruments as well as through its in"ocation by

international and national case law.

)he clause is widely seen as constituting an obstacle to a

reasoning a contrary granting belligerents complete freedom in

relation to conduct not e+plicitly regulated by humanitarian law

con"entions. )he clause is also often in"o8ed in connection with

the regulation of the use of new technologies and weapons by

international humanitarian law. )he debate o"er the clause has

been rein"igorated by the ad"isory opinion handed down in 199@ by

the International Court of Justice on the 2egality of the )hreat

or ?se of Nuclear %eapons.

/owe"er, the clause still raises a number of legal issues

relating to its scope and interpretation. )he central issue is

whether the clause is a pronouncement of a distinct and

autonomous source of obligations or a mere restatement of the

continuing importance of customary law for cases not dealt with

by con"entional humanitarian law.

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THE ORIGINS OF MARTENS CLAUSE

$arious international humanitarian treaties ha"e

incorporated a clause dating from roughly 144 years ago, 8nown as

the Martens Clause. Its drafter, ;yodor ;yodoro"ich Martens was

an ad"iser to the (ussian ;oreign Ministry at the beginning of

the 4 th century. ;irst inserted in the #reamble of the 194& /ague

Con"ention I$ on land war, the original clause reads as follows6

?ntil a more complete code of the laws of war has been

issued, the high contracting #arties deem it e+pedient to declare

that, in cases not included in the (egulations adopted by them,

the inhabitants and the belligerents remain under the protection

and the rule of the principles of the law of nations, as they

result from the usages established among ci"iliAed peoples, from

the laws of humanity, and the dictates of the public conscience.

)he Martens clause arguably for the first time sets forth

international legal rules embodying humanitarian considerations,

while maintaining that these rules are just as binding as those

moti"ated by political or military concerns.

)he #reamble also included important >ualifying conditions6

'ccording to the "iew of the /igh Contracting #arties, these

pro"isions, the wording of which has been inspired by the desire

to diminish the e"ils of war, so far a military necessities

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permit, are intended to ser"e as general rules of conduct for

belligerents in their relations with each other and with

populations. It has not, howe"er, been possible to agree

forthwith on pro"isions embracing all the circumstances which

occur in practice. Bn the other hand, it could not be intended by

the /igh Contracting #arties that the cases not pro"ided for

should, for want of a written pro"ision be left to the arbitrary

judgment of military commanders.

)he intent was to ensure that the e+igencies of military

engagement did not lea"e room for

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laws of humanity, and the dictates of public conscience. @

)he 194& "ersion was somewhat different6 inhabitants

replaced populations , the older law of nations was submitted

for international law , and re>uirements ga"e way to

dictates . 'lthough both the 1:99 and the 194& "ersion spea8 of

laws of humanity , it has become common practice, to refer to

them as principles of humanity. &

#roposed by the (ussian delegate, the eminent jurist ;. de

Martens, as )heodor Meron puts it the clause has ancient

antecedents rooted in natural law and chi"alry, it is articulated

in strong language, both rhetorically and ethically, which goes a

long way toward e+plaining its resonance and influence in the

formation and interpretation of the law of war and international

humanitarian law .

In the !ene"a Con"entions, the Clause found its e+pression

in the pro"isions regarding the right of denunciation. In these

pro"isions, the Con"entions affirmed the rights of the /igh

Contracting #arties to denounce the Con"entionsD howe"er, in

doing so, such denunciation would not absol"e the /igh

Contracting #arty from continuing to conduct itself in accordance

6 Ibid.,

7 )heodore Meron, )he Martens Clause, #rinciples of /umanity, and0ictates of #uplic Conscience , )he 'merican Journal of International2aw, $ol. 9 . No.1 3January, 4445

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with international law. 's the Clause outlined6

)he denunciation shall ha"e effect only in respect of the

denouncing #ower. It shall in no way impair the obligations which

the #arties to the conflict shall remain bound to fulfil by

"irtue of the principles of the law of nations, as they result

from the usages established among ci"ilised peoples, from the

laws of humanity and the dictates of public conscience. :

)he Clause, as used in the Con"entions, was employed for a

similar, though not identical goal to that en"isaged for the

/ague (egulationsD the idea being that should a #arty to the

Con"entions see8 to denounce part of whole of the Con"entions,

the #arty will still remain bound by certain fundamental

principles of international law, specifically,customary

international law.

%hen it came time to address the matter of the Martens

Clause, and whether it should be included in the 'dditional

#rotocols of 19&&, the Clause underwent some moderniAation and

found amended enunciation in 'rticle 13 5 of 'dditional #rotocol

I, which read as follows6

In cases not co"ered by this #rotocol or by other

international agreements, ci"ilians and combatants remain under

the protection and authority of the principles of international

8 -mily Crawford, )he Modern (ele"ance of Martens Clause , )he?ni"ersity of

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law deri"ed from established custom, from the principles of

humanity and from the dictates of public conscience.

)he Clause found its most attenuated, or emasculated

e+pression in 'dditional #rotocol IID included only in the

preamble, the #rotocol includes the Clause is this form6 Ein

cases not co"ered by the law in force, the human person remains

under theprotection of the principles of humanity and the

dictates of public conscience. %hile broadening the scope from

the categories of Fci"iliansG and Fbelligerents7combatantsG to

simply Fthe human personG, the scope of the Clause in 'dditional

#rotocol II was limited by dropping the reference to Fthe law of

nations7international lawG and Festablished custom.G )he

Commentary to the 'dditional #rotocols ma8es it e"ident that the

reasoning behind omitting any reference to established custom

is justified by the fact that the attempt to establish rules for

a non*international armed conflict only goes bac8 to 19 9 and

that the application of common 'rticle = in the practice of