THE MARTENS CLAUSE

Objective: To understand the meaning of the Martens Clause and its functions as a general principle of LOAC, designed to fill any gaps in the law. 1. In the Preamble of the Hague Convention II (1899) and of the Hague Convention IV (1907) one finds a peculiarly styled clause, which has gained some celebrity in international law. It has the following wording: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations 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 civilized peoples, from the laws of humanity, and the dictates of public conscience. This clause has been repeated in Articles 63/64/142/158 of Geneva Conventions I-IV. It has also been recalled in Article 1, 2, of Additional Protocol I of 1977 with the following, somewhat modernized wording: In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. 2. This clause had initially, in 1899, been suggested by the Russian delegate to the codification conference of the Hague, professor of international law Frederic de Martens. Its purpose was to strengthen the emerging LOAC, codified in the Hague Conventions. The delegates at the Hague were aware of the fact that they had posed only some principles and rules, relating more often than not to some prohibited means and methods of warfare; at the same time, huge areas of events arising in armed conflicts remained beyond the pale of regulation. This was true in particular of the protection of civilians in occupied territory and elsewhere. Occupied territories had received some regulation, but the rules were few (Articles 42-56 of the Hague Regulations of 1907). These rules on occupied territories were often formulated in vague terms or with problematic exceptions. They were concerned more with the administrative powers of the occupant than with a precise set of rules for the protection of civilians. Considering that there thus remained important gaps in the emerging LOAC, the delegates unanimously agreed to enter the so-called Martens Clause, requiring the belligerents to behave in a civilized manner even if in a particular instance no specific rule could be found in the corpus of codified LOAC. They had particularly in mind the situations in occupied territories, where an occupant faces a population which is, or which he deems, hostile to his presence. 3. The clause has thus two distinct functions, to which other ones may be added. The main functions of the clause are aptly summarized in the ICRC Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Geneva, 1987, p. 3839: First, despite the considerable increase in the number of subjects covered by the law of armed conflicts, and despite the detail of its codification, it is not possible for any codification to be complete at any given moment; thus the Martens Clause prevents the assumption that anything which is not explicitly prohibited by the relevant treaties is therefore permitted. Secondly, it should be seen as a dynamic factor proclaiming the applicability of the principles mentioned regardless of subsequent developments of types of situation or technology. Let us take up these points.

First, the temptation may be great to apply, in the grids of wartime constraints, the concept of sovereignty in order to argue that all conducts not explicitly prohibited by a rule of armed conflict remain lawful: what is not prohibited is therefore allowed. In face of important gaps in LOAC some limitation of this kind displays a useful function. Otherwise, the gaps in the written law may lead to utterly destructive and inhumane 1

behavior, provoking thereafter similar reprisals. The Martens Clause requires that any belligerent always consider if a proposed conduct, even if not explicitly prohibited, is compatible with the principle of humanity and compassion. A moral principle is thus introduced into the law.

Second, the Martens Clause may serve as a principle perpetuating the humanitarian ideals and the great principles underlying LOAC regardless of the inevitable changes in the situations of war. The clause here protects and immunizes this humanitarian aspect of LOAC with regard to the argument of the fundamental change of circumstances.

To these main functions, other could be added. Thus, for example, the Martens Clause serves as a basis for interpreting LOAC in a humanitarian sense. Moreover, it can be seen as a call to apply also international human rights law in order to complement LOAC and eventually to fill in its gaps. Finally, it can be read as a reminder that customary international law applies to all armed conflicts, whether or not a particular instance is provided for by treaty law, and whether or not the relevant treaty law binds as such the parties to the conflict. 4. There is today no doubt that the Martens Clause is part and parcel of applicable LOAC. It is not just a policy indication or a wish expressed by the parties, devoid of any specific legal meaning. This is already made clear by the fact that its content has been inserted in specific legal provisions in the Geneva Conventions and in Additional Protocol I, whereas in the Hague Convention IV it was inserted as a preambular paragraph. However, the clause has been applied as positive law (applicable law) already in 1948, in the Krupp case, decided by a US military tribunal in Germany. The tribunal declared that: The Preamble is much more than a pious declaration. It is a general clause, making the usages established among civilized nations, the laws of humanity and the dictates of public conscience into the legal yardstick to be applied if an when the specific provisions of the Convention and the Regulations annexed to it do not cover specific cases occurring in warfare, or concomitant to warfare (see in: Annual Digest of Public International Law Cases, vol. 15, p. 622). Moreover, the International Court of Justice (ICJ), in the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion (1996), in 78 expressed as follows: The Court would likewise refer, in relation to these principles [of LOAC], to the Martens Clause, which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. However, in practice the Martens Clause is not invoked as often as it could and should be. Comprehension Check: 1. In what contexts may the Martens Clause serve and to what end? 2. How can it be argued that the clause is part and parcel of the law and not only a nonbinding moral principle? Please consult the next page for answers.

Answers: 1. The clause can serve in many contexts, always with the aim of strengthening IHL. The following are some examples: (1) The clause may help to fill in gaps, in particular by precluding the argument that because a behavior is not explicitly prohibited it must be considered allowed. (2) The clause may recall that the main principles of LOAC, and in particular the principle of humanity, remain paramount notwithstanding important changes in the technical, political or social environment of warfare. (3) The clause may serve in the interpretation of particular provisions of IHL. (4) The clause may be taken as a reminder of the applicability of International Human Rights Law in complement to LOAC, or in order to fill its gaps. (5) The clause can be taken as a reminder of the applicability of customary international law alongside and contemporaneously to treaty law. (6) The clause may also serve as a basis for creating new rules of IHL at a diplomatic conference, when the delegates inspire themselves at its injunction of humanity. Further roles can be found. The clause is open-ended and can be invoked in the most changing contexts. 2. One may invoke in particular two grounds: (1) The fact that the clause is now inserted in operational treaty provisions rather than in a preamble; (2) customary international law, which has clothed the clause with a legal meaning; (3) international jurisprudence, having mentioned the clause as being part of positive (applicable) law, such as, e.g. the quoted Krupp case or the Nuclear Weapons case.