Martens Clause
The Martens Clause was introduced into the preamble to the 1899 Hague Convention
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 – 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 Norway
    Supreme Court of Norway
    The 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 Yugoslavia
    International Criminal Tribunal for the former Yugoslavia
    The 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 Martić
    Milan Martic
    Milan 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 II
    Protocol II
    Protocol 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 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...

     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

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