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The Martens Clause, Principles of Humanity, and Dictates of Public Conscience

Published online by Cambridge University Press:  27 February 2017

Theodor Mero
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Extract

Together with the principle prohibiting weapons “of a nature to cause superfluous injury” or “calculated to cause unnecessary suffering,” the Martens clause, in the Preamble to the Hague Conventions on the Laws and Customs of War on Land, is an enduring legacy of those instruments. In the years since its formulation, the Martens clause has been relied upon in die Nurembergjurisprudence, addressed by the International Court of Justice and human rights bodies, and reiterated in many humanitarian law treaties that regulate the means and methods of warfare. It was restated in die 1949 Geneva Conventions for the Protection of Victims of War, the 1977 Additional Protocols to those Conventions, and the Preamble to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, albeit in slightly different versions. The Martens clause was paraphrased in Resolution XXIII of the Tehran Conference on Human Rights of 1968, and is cited or otherwise referred to in several national military manuals, including those of the United States, die United Kingdom, and Germany. Moreover, attempts have recently been made, including by parties before die International Court of Jusdce, to invoke the clause, in the absence of specific norms of customary and conventional law, to oudaw the use of nuclear weapons.

Type
Symposium: The Hague Peace Conferences
Information
American Journal of International Law , Volume 94 , Issue 1 , January 2000 , pp. 78 - 89
Copyright
Copyright © American Society of International Law 2000

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References

1 These phrases appear, respectively, in Article 23(e) of Hague Convention No. II of 1899 and Hague Convention No. IV of 1907. Convention [No. II] widi Respect to the Laws and Customs of War on Land, with annex of regulations, July 29, 1899, 32 Stat. 1803, 1 Bevans 247; Convention [No. IV] Respecting the Laws and Customs of War on Land, with annex of regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631.

2 See generally Helmut Strebel, Martens Clause, [Instalment] 3 Encyclopedia of Public International Law 252 (Rudolf Bernhardt ed., 1982).

3 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Art. 63, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Aug. 12,1949, Art. 62,6 UST 3217,75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12,1949, Art. 142,6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 158, 6 UST 3516, 75 UNTS 287.

4 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature Dec. 12, 1977,Art. 1(2), 1125 UNTS 3 [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature Dec. 12, 1977, pmbl., para. 4, 1125 UNTS 609 [hereinafter Protocol II].

5 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Oct. 10, 1980, pmbl., para. 5, 1342 UNTS 137.

6 The resolution requested that the Secretary-General urge member states of the United Nations system,

pending the adoption of new rules of international law relating to armed conflicts, to ensure tiiat in all armed conflicts the inhabitants and belligerents are protected in accordance with “die principles of the law of nations derived from the usages established among civilized peoples, from the laws of humanity and from the dictates of the public conscience.”

Final Act of the International Conference on Human Rights, Res. XXIII, para. 2, at 18, UN Sales No. E.68.XIV.2 (1968). Compare the Martens clause, quoted in text at p. 79 infra.

7 For the U.S. manuals, see Dep't of the Army, The Law of Land Warfare, para. 6 (Field Manual No. 27–10, 1956); U.S. Dep't of the Air Force, International Law—The Conduct of Armed Conflict and Air Operations 1–7 (b) (AFP No. 110–31, 1976). For the British manual, see United Kingdom War Office, The Law of War on Land, Being Part III of the Manual Of Military Law, paras. 2, 3, 5 (1958) [hereinafter UK Manual]. For the German manual, see Federal Ministry of Defense, Humanitarian Law in Armed Conflicts-Manual, para. 129 (ZDv 15/2, 1992). Citing the Martens clause, the manual adds: "If an act of war is not expressly prohibited by international agreements or customary law, this does not necessarily mean that it is actually permissible.”

8 Martens used several names over his lifetime: Fedor Fedorovitsch, Frédéric, and Friedrich. See V. V. Poustogarov, Au Service de la paix: Frédéric de Martens et les Conférences Internationales de la paix de 1899 et 1907, at 15 (1999). Regarding the Martens clause, see id. at 174–76.

9 In 1643 the Articles and Ordinances of War for the Present Expedition of the Army of the Kingdom of Scodand concluded with an eloquent provision that established not only custom but also the law of nature as a residual source, and thus enhanced the principle of humanity, which is a part of the law of nature: “Matters, that are clear by the light and law of nature are presupposed; things unnecessary are passed over in silence; and other things may be judged by the common customs and constitutions of war; or may upon new emergents, be expressed afterward.” See Francis Grose, Military Antiquities 127, 137 (1788), quoted in Theodor Meron, War Crimes Law Comes of Age 10 (1998). This provision captures the spirit of the Martens clause.

10 See Frits Kalshoven, Constraints on the Waging of War 14 (2d ed. 1991); Christopher Greenwood, Historical Development and Legal Basis in, Handbook of Humanitarian Law in Armed Conflicts 129 (Dieter Fleck ed., 1995); Frederick W. Halls, The Peace Conference at The Hague 135–38 (1900); Ministère des Affaires Etrangères, La Haye, Conférence internationale de la paix 1899, Troisième partie, Deuxième Commission, at 111–16 (1899).

11 Georges Abi-Saab, The Specificities of Humanitarian Law, in Studies and Essays on International Humanitarian Law and Red Cross Principles 265, 274 (Christophe Swinarski ed., 1984).

12 Altstötter, 6 Law Reports of Trials of War Criminals 40, 58–59 (United Nations War Crimes Commission, 1948) (U.S. Mil. Trib. 1947). For the customary law underpinnings of rules protecting the population of occupied territories, see General Orders No. 101 issued by the U.S. War Department for the occupation of Santiago de Cuba after the capitulation of the Spanish forces (July 18, 1898). The order, cited in the Altstötter case, reflects the Lieber Code and anticipates the Hague Regulations, supra note 1. See 1898 Foreign Relations of the United States 783–84.

13 In re Krupp and others, 15 Ann. Dig. 620, 622 (U.S. Mil. Trib. 1948).

14 Id.

15 15 Law Reports of Trials of War Criminals, supra note 12, at xiii (1949).

16 See Abi-Saab, supra note 11, at 275.

17 Protocol I, supra note 4.

18 8 Diplomatic Conference on the Reaffirmation and Development of International Law Applicable in Armed Conflicts, Official Records, Doc. CDDH/I/SR.3, para. 11 (1978).

19 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 39 (Yves Sandoz, Christophe Swinarski, & Bruno Zimmermann eds., 1987).

20 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 406 (July 8) (Shahabuddeen, J., dissenting) [hereinafter Nuclear Weapons].

21 The distinction between usages and custom is recognized, in the context of the Martens clause, by the UK Manual, supranote 7. The Manua/states that cases beyond the scope of the Hague Convention remain the subject of customary law and usages. Id., para. 5. Usages of war, which exist side by side with the customary and written law of war, are not legally binding but have the tendency to harden into legal rules of warfare. Id., para. 2.

22 Nuclear Weapons, 1996 ICJ Rep. at 406.

23 See Theodor Meron, Human Rights and Humanitarian Norms as Customary Law 34, 72 (1989).

24 Protocol II, supra note 4, pmbl.

25 Corfu Channel case (UK v. A1b.) (Merits), 1949 ICJ Rep. 4, 22 (Apr. 9).

26 Responsabilité de l'Allemagne à raison des dommages causes dans les colonies portuguaises du sud de l'Afrique, 2 R.IA.A. 1013, 1026 (1928).

27 Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 113–14, para. 218 (June 27) [hereinafter Nicaragua].

28 Report of the Secretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993), para. 48 n.9, UN Doc. S/25704 (1993), reprinted in 32 ILM 1163, 1191 (1993).

29 Prosecutor v. Martic, Review of the Indictment Pursuant to Rule 61, No. IT–95–11–R61, para. 13 (Mar. 13, 1996).

30 UK Manual, supra note 7, para. 3.

31 Prosecutor v. Furundzija, Judgement, No. IT–95–17/1–T, para. 137 (Dec. 10, 1998).

32 Report on the situation of human rights in Kuwait under Iraqi occupation, para. 36, UN Doc. E/CN.4/1992/26.

33 SC Res. 1067, para. 6 (July 28,1996).

34 See MERON, supra note 9, at 304–09.

35 UN GAOR, 6th Coram., 28th Sess., 1452d mtg., at 306, para. 46, UN Doc. A/C.6/SR.1452 (1973).

36 Id.

37 See Greenwood, supra note 10, at 129.

38 Nuclear Weapons, 1996 ICJ Rep. at 403.

39 International Court of Justice—Requests for Advisory Opinions on the Legality of Nuclear Weapons—Australian Statement, 1996 Austl. Y.B. Int'l L. 685, 699 [hereinafter Australian Statement].

40 Id. at 703.

41 Nuclear Weapons, 1996 ICJ Rep. at 490.

42 Reglamento para el servicio de campana, Art. 826 (1882), rented in Estado Mayordel Ejército, Manual de derecho de guerra 329–30 (M–O–23–1, 1986).

43 UK Manual, supra note 7, para. 619.

44 Australian Defence Force, Law of Armed Conflict Training, para. 7 (DI(G) OPS, 1994).

45 See Rupert Ticehurst, The Martens Clause and the Laws of Armed Conflict, Int'l Rev. Red Cross, No. 317, Mar.-Apr. 1997, at 125, 127.

46 Written statement of the United Kingdom, Nuclear Weapons, 1996 ICJ Pleadings (June 2, 1994), reprinted in 1995 Brit. Y.B. Int'l L. 712, para. 32.

47 See John Burroughs, The Legality of Threat or Use of Nuclear Weapons 102 (1998).

48 See id. The United States interprets the Martens clause as recognition of the continued validity of customary rules that have not been altered by treaty, and of custom as a potential source of new rules. See Burrus M. Carnahan, Customary Rules of International Humanitarian Law, Report on the Practice of the United States 6-2 (1997) (prepared for the ICRC).

49 James Crawford for the Solomon Islands, cited in Burroughs, supra note 47, at 102.

50 See Ticehurst, supra note 45, at 126.

51 Australian Statement, supra note 39, at 692–93.

52 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons, and on Their Destruction, Apr. 10, 1972, 26 UST 583, 1015 UNTS 163.

53 Australian Statement, supra note 39, at 704.

54 Id. at 694.

55 Nuclear Weapons, 1996 ICJ Rep. at 408. Compare Prosecutor v. Kupreškić, No. IT–95–16–T, Judgement, para. 525 (Jan. 14, 2000), where ICTY Presiding Judge Antonio Cassese stated:

True, this Clause may not be taken to mean that the “principles of humanity” and the “dictates of public conscience” have been elevated to the rank of independent sources of international law, for this conclusion is belied by international practice. However, this Clause enjoins, as a minimum, reference to those principles and dictates any time a rule of international humanitarian law is not sufficiently rigorous or precise: in those instances the scope and purport of the rule must be defined with reference to those principles and dictates.

56 Nuclear Weapons, 1996 ICJ Rep. at 493.

57 Id. at 257, para. 78.

58 Id.

59 Id., para. 79.

60 Id. at 259, para. 84.

61 Id. at 260, para. 87.

62 Id. at 262, para. 95.

63 Id.

64 Nicaragua, 1986 ICJ Rep. 14, 95, para. 178.

65 See Louise Doswald-Beck, International Humanitarian Law and the Advisory Opinion of the International Court of justice on the Legality of the Threat or Use of Nuclear Weapons, Int'l Rev. Red Cross, No. 316, Jan.-Feb. 1997, at 35, 49.

66 2 U.S. Dep't of the Army, International Law 15 (No. 27–161–2–1962), quoted in Meron, supra note 23, at 36.

67 Oscar Schachter, International Law in Theory and Practice 36 (1991).

68 U.S. Dep't of the Air Force, supra note 7, at 1–6.