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.
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.
Table of Contents
1. Introduction
2. History of the Martens clause
3. The relevance of the Martens clause in case law
3.1. Supreme Court of Norway [Klinge – 1946]
3.2. United States v Krupp [1948]
3.3. Dutch Special Court of Cassation [Rauter – 1949]
3.4. Conseil de guerre de Bruxelles [K.W.- 1950]
3.5. Trial Chamber I of ICTY [Martic – 1996]
3.6. ICJ: Legality of the threat or use of nuclear weapons case [Advisory opinion – 1997]
3.7. Decision of the German Bundesverfassungsgericht [2004]
4. The status of the Martens clause
4.1. Common view
4.2. Cassesse’s view
4.3. Shircks’s view
5. Conclusion
Research Objectives and Core Themes
This paper examines the Martens clause within international humanitarian law to determine its potential role and function as an independent source of international law, while analyzing how it influences state conduct and legal interpretations in armed conflicts.
- Legal evaluation of the Martens clause's status in modern international law.
- Analysis of the clause's application in historical and landmark case law.
- Comparison of diverse scholarly perspectives, specifically those of Cassesse and Shircks.
- Investigation into the clause's function as a guiding principle versus a source of law.
- Assessment of the clause's role in filling legal gaps regarding basic fundamental rights.
Excerpt from the Book
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”. 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 dismissed. In this case the clause was used to show that torture is a war crime. It seems to have a great meaning as it was mentioned before all other legal basis.
Summary of Chapters
1. Introduction: Presents the relevance of humanitarian law in modern conflicts and outlines the paper's aim to evaluate the Martens clause as a potential source of international law.
2. History of the Martens clause: Details the origin of the clause in the 1899 Hague Negotiations and its subsequent integration into major international conventions.
3. The relevance of the Martens clause in case law: Analyzes various international and national court decisions to illustrate how the clause has been invoked in legal proceedings.
4. The status of the Martens clause: Explores common academic views and specific interpretations from legal scholars like Cassesse and Shircks regarding the clause's legal standing.
5. Conclusion: Summarizes findings, suggesting that while the clause is not yet a formal new source of law, it holds fundamental value in legal practice and interpretation.
Keywords
Martens clause, International humanitarian law, Law of war, Public conscience, Human rights, Legal interpretation, Customary law, State practice, Armed conflict, Hague Convention, International court, Legal sources, Humanitarian principles
Frequently Asked Questions
What is the primary focus of this paper?
The paper focuses on the legal examination of the Martens clause and its potential role as an independent source of international law within the context of humanitarian conflicts.
What are the central themes discussed?
The central themes include the historical development of the clause, its application in judicial case law, and its function as a protective mechanism for fundamental rights.
What is the central research question?
The research seeks to clarify whether the Martens clause can be classified as a new source of international law or if it primarily serves as an interpretative guideline and supplementary legal basis.
Which methodology is employed in this research?
The author employs a legal-analytical method, examining primary case law and comparing theoretical interpretations from prominent legal scholars.
What aspects of the Martens clause are covered in the main body?
The main body covers its origin in Hague negotiations, its practical application by various courts—including the ICJ and national tribunals—and theoretical debates regarding its influence on customary law.
Which keywords best characterize this research?
Key terms include Martens clause, international humanitarian law, public conscience, customary law, and legal interpretation.
How did the Supreme Court of Norway interpret the clause in the Klinge case?
The court used the clause to justify that torture is a violation of the laws of humanity and dictates of public conscience, thereby affirming its status as a war crime despite retroactive challenges.
What role does the Martens clause play in the context of technological military evolution?
According to the ICJ, the clause serves as an effective, flexible tool for addressing legal gaps arising from the rapid evolution of military technology and weaponry.
- Quote paper
- LL.B. Anja Balitzki (Author), 2007, The Martens clause, Munich, GRIN Verlag, https://www.grin.com/document/133806
