Table of contents

1.  Introduction  3

2.  History of the Martens clause  3

3.  The relevance of the Martens clause in case law  4

3.1.  Supreme Court of Norway Klinge 1946  4

3.2.  United States v Krupp 1948  5

3.3.  Dutch Special Court of Cassation Rauter 1949  5

3.4.  Conseil de guerre de Bruxelles K.W 1950  5

3.5.  Trial Chamber I of ICTY Martic 1996  6

3.6.  ICJ: Legality of the threat or use of nuclear weapons case Advisory opinion 1997  6

3.7.  Decision of the German Bundesverfassungsgericht 2004  6

4.  The status of the Martens clause  7

4.1.  Common view  7

4.2.  Cassesse s view  7

4.3.  Shircks s view  8

5.  Conclusion  9

6.  Bibliography  10

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1. Introduction

“Moralities, ethics, laws, customs, beliefs, doctrines – these are of trifling import. All that matters is that the miraculous become the norm.” Henry Miller (1891–1980), American writer.

Humanitarian law seems to become a more and more important topic in international law because of events like the war in Iraq and the increasing problems and differences between radical Islamic people and western states. There seems to be a change of attitudes as large parts of our society increasingly show that they are against wars, especially, when civilians and innocent people are wounded or even killed.

The Martens clause could be an appropriate means to limit the force and brutality in wars and to remind states that they cannot do what they want and that there are principles, which must be respected, also concerning such situations.

The emphasis of this paper lays on a legal examination of the clause and highlights its possible role as an independent source of international law. In chapter 4 the opinions of Cassesse and Shircks are separately explained, as they contain interesting ideas and the authors have dealt with the topic in detail.

There is a lot of literature, especially about the law of wars, in which the Martens clause is cited or mentioned, but it was more difficult to find books or essays about its actual status and an evaluation of its function concerning the legal perspective. Because of the guidelines for the length of the paper, the case law could not be explained in greater detail. The author of this paper wants to explain today’s meaning and scope of the Martens clause in humanitarian law and consequently its (possible) influence on the conduct of states.

2. History of the Martens clause

In 1899 the Hague Negotiations on Land Warfare took place. There was a discussion between the small and great powers about the question if combatants and resisters in occupied territory should have prisoner-of-war-status and if they are legitimate fighters. ¹ Fyodor Fyodorovich Martens (1845-1909) proposed the wording of the clause for this problem. This had the effect that the negotiations could peacefully be finished.

The clause can be found in the preamble of the Hague Conventions of 1899 and 1907. It was restated in the Geneva Convention 1949 and in Art. 1 (2) of its additional Protocol I on

¹ Howard/Andreopoulos/Shulman, p. 122

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International armed conflicts and in a slightly different manner in the preamble of Protocol II.

Art. 1 (2) is seen as a modern version of the Martens clause. ² After the Second World War the sources of international law, which the ICJ should apply were codified in Art. 38 of the Statute of the ICJ. The chairman made a reference to the Martens clause and proposed that there should be an inclusion of “rules of international law as recognized by the legal conscience of civilized nations”. The committee split into two groups. On the one hand the majority wanted to expand the sources, so that the ICJ had the possibility to fill gaps. On the other hand people wanted to adhere to the traditional view that the court should just apply rules, which were legitimized by the will of the states, namely by treaties and custom. A compromise was found by adopting in Art. 38 (1) (c) the “general principles of law recognized by civilized nations”. Thus, the court cannot create law, but has to follow the

national principles of the states. ³ Martens himself did not mention the clause in his writings about the Hague Conference 1899 and also during his lifetime nobody seemed to see an

achievement concerning the clause. ⁴ The meaning of the clause in the Hague Conventions of 1899 and 1907 cannot clearly be found out. Some say that it was just a diplomatic trick in order to avoid a dissatisfactory discussion between the smaller and greater states and to bring the negotiations to a reasonably

successful end. ⁵ Other opinions want to show that there was a suggestion of a universal approach, which gave all human beings basic rights. 6

3. The relevance of the Martens clause in case law

3.1. Supreme Court of Norway [Klinge – 1946] Karl-Hans Hermann Klinge was a member of the Gestapo and charged with and convicted of

torture of Norwegians citizens, because of the “Eidsivating Lagmansrett”. ⁷ Klinge appealed and claimed that no law might have retroactive effect. The Court stated that torture is against the laws of humanity and the dictates of the public conscience and belongs to the category of war crimes. Therefore, the criminal character was laid down in international law relating to the laws and customs of war, which were binding for Norway. The appeal was consequently

² Transnational Publishers, p. 7

³ Cassesse, p. 190 ⁴ Cassesse (Essay), p. 200 ⁵ Cassesse, p. 160 ⁶ Hensel, p. 40 ⁷ Shircks, p. 46

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