MARTEN’S CLAUSE
 Marten's Clause is a provision that was first introduced in the Martens Clause of
the 1899 Hague Convention. The clause was later incorporated into the Geneva
Conventions and other international treaties.
 The Martens Clause is named after its author, the Russian diplomat and
international law expert Fyodor Martens. The clause was added to the Hague
Convention in response to the atrocities committed during the Russo-Japanese
War of 1904-1905.
 The Martens Clause states that even if a specific rule is not included in a treaty or
convention, parties are still bound by the principles of international law and the
dictates of humanity. It reads as follows:.
 “In cases not covered by this Convention 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."
 The Martens Clause is significant because it recognizes that international law is
not limited to the specific provisions of a treaty or convention. Instead, it
acknowledges that there are fundamental principles of humanity and public
conscience that must be respected in all situations, even those not covered by
existing international agreements. This means that even in the absence of a
specific rule, parties to a conflict are still bound by the principles of international
law and must act in accordance with the dictates of humanity.
PRINCIPLE OF IHL
1. Distinction
 IHL requires parties to a conflict to distinguish between civilians and
combatants, and between civilian objects and military objectives. Attacks
may only be directed against legitimate military objectives, and civilians and
civilian objects must not be intentionally targeted.
2. Proportionality
 IHL requires that any attack must be proportional to the military advantage
sought. The harm caused to civilians or civilian objects must not be
excessive in relation to the direct military advantage gained.
3. Precaution
 IHL requires parties to take constant care to spare civilians and civilian
objects during military operations. They must take all feasible precautions
to avoid or minimize incidental loss of civilian life, injury to civilians and
damage to civilian objects.
4. Humanity
 IHL is based on the principle that all parties to a conflict must show respect
for human dignity and must take steps to alleviate the suffering of civilians
and combatants.
5. Non-discrimination
 IHL prohibits discrimination in the treatment of persons affected by armed
conflict. All individuals must be treated equally and without adverse
distinction, regardless of their nationality, race, religion, or political opinion.
These principles apply to all parties to a conflict, whether they are states, armed
groups, or individuals. The principles are designed to balance military necessity with
humanitarian considerations and to ensure that even in times of armed conflict, the rights
and dignity of all individuals are respected.
IHL CONCEPTS
1. Law - “[A] body of rules of action or conduct prescribed by controlling authority,
and having binding legal force.”
2. International Law - “[T]he body of rules governing relations between States.”
a. Customary International Law - “State practice considered by them to be
legally binding.”
b. Treaties - “A formally concluded and ratified agreement between states.”
INTERNATIONAL LAW
International Law is composed of:
1. Human Rights Law – “A set of international rules…on the basis of which
individuals and groups can expect and/or claim certain behavior or benefits from
governments.”
2. Refugee Law – Law addressing rights of refugees & the obligations of States to
protect those rights;
3. International Humanitarian Law – “A set of rules which seek, for humanitarian
reasons, to limit the effects of armed conflict.”
4. International Disaster Relief Laws – “The laws, rules and principles applicable
to the access, facilitation, coordination, quality and accountability of international
disaster response activities in times of non-conflict related disasters, which
includes preparedness for imminent disaster and the conduct of rescue and
humanitarian assistance activities.”
DIFFERENCES OF HUMANITARIAN LAW AND HUMAN RIGHTS LAW
•
•
•
HUMANITARIAN LAW
applies in situations of armed
conflict
aims to protect people who do not
or are no longer taking part in
hostilities
must be observed by the States
and all those forces who are taking
part in the hostilities
•
•
•
HUMAN RIGHTS LAW
applies in times of war* and peace
alike
principal goal is to protect
individuals from arbitrary behaviour
by their own governments
must be observed by all persons at
all times and the government
SIMILARITIES
• Both laws strive to protect the lives, health and dignity of individuals, albeit from a
different angle.
• Both laws recognize the sanctity and value of human persons and the respect
thereof.
• The duty to implement IHL and human rights lies first and foremost with States.
Humanitarian law obliges States to take practical and legal measures, such as
enacting penal legislation and disseminating IHL. Similarly, States are bound by
human rights law to accord national law with international obligations.
NON-DEROGABLE RIGHTS
• In extreme circumstances, "in time of public emergency which threatens the life of
the nation" (article 4(1) ICCPR), States may take measures to derogate from the
Covenant, i.e. to temporarily suspend or adjust their obligations under the treaty,
provided a number of conditions are met. The importance of adhering to these
criteria has been emphasized by inter alia the United Nations General Assembly
(e.g. United Nations General Assembly, (2005),
• A number of rights are 'non-derogable', meaning that they may not be suspended
even in times of the most serious public emergency.
• “Derogation is a temporary expedient, of last resort, to meet an exceptional
national threat, where the permissive scope of limitations ordinarily available to
allow restriction would be insufficient”
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Paul Taylor, Article 4: Derogation in Times of Officially Proclaimed Public
Emergency Threatening the Life of the Nation
Non-derogable rights in the International Covenant on Civil and Political Rights
1966
Article 4(2) specifies those rights which are non-derogable:
Article 6 (right to life);
Article 7 (prohibition on torture, cruel, inhuman or degrading treatment);
Article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude);
Article 11 (prohibition on imprisonment on the basis of inability to pay a contractual
obligation);
Article 15 (principle of legality in the field of criminal law);
Article 16 (right to recognition as a person before the law); and
Article 18 (freedom of thought, conscience and religion).
According to the Human Rights Committee (General Comment No. 29, paragraphs
13-16), there are elements in some of the rights not listed in article 4(2) which
cannot be lawfully derogated from. Of particular relevance to human rights while
countering terrorism, these include:
All persons deprived of their liberty shall be treated with humanity and with respect
for the inherent dignity of the human person (article 10);
Prohibition against taking of hostages, abductions and unacknowledged detention;
and
The fundamental requirements of a fair trial.
Certain other rights are also considered to be non-derogable under general
international law and/or in practice too despite not being provided for expressly
under article 4(2). These include the right to a fair trial (article 14) and elements of
the principle of non-discrimination e.g. to the extent that this protects nonderogable rights. (See, e.g. United Nations, Human Rights Committee
(2001). General Comment No. 29: Article 4: Derogations
DEFINITION OF INTERNATIONAL HUMANITARIAN LAW AND PURPOSE
• What is international humanitarian law? This body of law can be defined as the
principles and rules which limit the use of violence in times of armed conflict.
• The aims are:
• To protect persons who are not, or are no longer, directly engaged in
hostilities-the wounded, shipwrecked, prisoners of war and civilians;
• To limit the effects of violence in fighting to the attainment of the objectives
of the conflict.
• The evolution of international law related to the protection of war-victims and to the
conduct of war has been strongly affected by the development of human rights
legal protection after the Second World War.
• During wartime or public emergency, however, the enjoyment of certain human
rights may be restricted under certain circumstances. Article 4 of the International
Covenant on Civil and Political Rights allows States to take measures temporarily
derogating from some of their obligations under the Covenant "in time of public
emergency which threatens the life of the nation", but only "to the extent strictly
required by the exigencies of the situation"
• However, the need of safeguarding human rights even during wartime has been
fully recognized; article 3 of the four Geneva Conventions on humanitarian law of
1949 provides that in times of armed conflict persons protected by the conventions
should "in all circumstances be treated humanely, without any adverse distinction
founded on race, colour, religion or faith, sex, birth or wealth, or any other similar
criteria".
JUS AD BELLUM vs. JUS IN BELLO
JUS AD BELLUM
Rules governing the resort to armed force
(practically disapperared
2 exceptions (UN Charter):
- Self-defence
- Collective security operations
- Wars of national liberation
•
•
JUS IN BELLO
Rules applicable between parties to an
armed conflict and related to the armed
conflict, formed by 2 main currents:
- Geneva Law
- Hague Law
The High Contracting Parties, Expressing their conviction that nothing in this
Protocol or in the Geneva Conventions of 12 August 1949 can be construed as
legitimizing or authorizing any act of aggression or any other use of force
inconsistent with the Charter of the United Nations [...]
Additional Protocol I (1977), Preamble
EVOLUTION OF IHL
 As French and Austrian armies fought the battle of Solferino in northern Italy in
June, 1859, the idea of international action to limit the suffering of the sick and
wounded in wars was born in the mind of Jean Henri Dunant, a young Swiss
citizen.
IHL LANDMARK
A Memory of Solferino
3 Problems Identified:
1. insufficient number of military medical personnel
2. no special protection for medical personnel
3. no distinctive sign to identify medical services
Henry Dunant's Proposals
1. Creation in every country of voluntary relief societies auxiliary to the medical
services of the armed forces
2. Adoption of an international treaty on the protection of medical personnel
3. Adoption of an international sign of protection for the medical services
Red Cross / Red Crescent Movement:
• International Committee of the Red Cross – ICRC
• International Federation of Red Cross and Red Crescent Societies – IFRC
• National Red Cross / Red Crescent / Societies – ex.: American Red Cross
Signing of the First Geneva Convention – August 22, 1864
LAW OF IHL
• It does not prohibit the use of violence, and that includes even deadly violence.
• It cannot protect all those affected by armed conflict (It is not a question of who is
innocent, a mere member of the military can be a target of lawful attack in times of
war)
• It cannot make a distinction according to the aim of the conflict (fighting for a wrong
or correct cause is subject to the same limitation)
• It cannot prohibit overcoming the enemy (parties to armed conflicts are vested with
the same military objective to weaken the enemy's defense and resort to violent
means can be done.
• It presupposes that the parties to an armed conflict have rational aims, including
those contradicting IHL.
WHEN DOES HUMANITARIAL LAW APPLY (SITUATIONS OF APPLICATION)
• Only during armed conflict:
• International armed conflict:
• State vs. State
• Wars of national liberation;
• Non-international armed conflict
• State vs. rebels
• Rebels vs. rebels
• NOT applicable to:
• Acts of sporadic violence;
• Times of peace.
INTERNATIONAL ARMED CONFLICT
• The notion of “armed conflict” has, from 1949 onwards, replacing the traditional
notion of “war”.
• In the application of a standard rule of the law of State responsibility on the
attribution of unlawful acts, a conflict between government forces and rebel forces
within a single country becomes of international character if the rebel forces are
de facto agents of a third State
• Wars of national liberation mean armed conflicts in which peoples are fighting
against colonial domination and alien occupation and against racist regimes in the
exercise of their right of self-determination [...].”
NON-INTERNATIONAL ARMED CONFLICT
• Traditionally, non-international armed conflicts (or, to use an outdated term, “civil
wars”) were considered as purely internal matters for States, in which no
international law provisions applied.
• Unlike violence between the armed forces of States, not every act of violence
within a State (even if directed at security forces) constitutes an armed conflict.
The threshold of violence needed for the IHL of non-international armed conflicts
to apply is therefore higher than for international armed conflicts.
• Generally, the threshold is crossed when peacetime law enforcement approaches
are unable to deal with the intensity of violence, thereby necessitating the
deployment of the State's armed forces. The test for this, articulated by the
International Criminal Tribunal for the former Yugoslavia, is the existence of a
situation of "protracted armed violence" between a State and organized armed
groups or between such groups ( Prosecutor v. "Dule", 1995, para. 70). Evidential
factors for determining whether or not the armed conflict threshold test has been
crossed in
• NIAC situations include:
• [T]he number, duration and intensity of individual confrontations; the type of
weapons and other military equipment used; the number and calibre of munitions
fired; the number of persons and type of forces partaking in the fighting; the number
of casualties; the extent of material destruction; and the number of civilians fleeing
combat zones. The involvement of the UN Security Council may also be a
reflection of the intensity of a conflict ( Prosecutor v. Haradinaj et al, 2008, para.
49).
OTHER SITUATIONS
• IHL is not applicable in situations of internal violence and tension which do not
meet the threshold of non-international armed conflicts.
• This point has been clearly made in Article 1(2) of Additional Protocol II, which
states: “This Protocol shall not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence and other acts of a
similar nature, as not being armed conflicts [...].”[
• The non-applicability of IHL does not necessarily mean lesser protection for the
persons concerned. In such cases, human rights rules and peacetime domestic
law would apply; they are more restrictive, for instance, regarding the use of force
and detention of enemies, while IHL gives States greater latitude on these two
aspects.
PERSONAL SCOPE
• International humanitarian law first and foremost binds parties to an armed conflict.
These parties may be states, international organizations or organized armed
groups.
• In international armed conflicts, international humanitarian law formally recognizes
and defines distinct categories of persons who do not or no longer directly
participate in hostilities as ‘protected persons’. These are the wounded, sick, and
shipwrecked, prisoners of war, and civilians.
• Among the aforementioned persons that enjoy general protection, international
humanitarian law grants special protection to certain groups of persons, namely
women, children, refugees and displaced persons, missing persons, medical and
religious personnel, humanitarian relief personnel, journalists, and personnel
involved in a peacekeeping mission who are entitled to the protection given to
civilians under international humanitarian law.
TEMPORAL SCOPE
• International humanitarian law begins to apply from the beginning of the
international armed conflict, the situation of belligerent occupation, or the noninternational armed conflict.
• The law of non-international armed conflicts begins to apply as soon as the armed
violence is sufficiently intense and the armed group(s) sufficiently organized so as
to meet the legally required threshold.
• In international armed conflicts, international humanitarian law ceases to apply on
the general close of military operations. The law of belligerent occupation ceases
to apply at the termination of the occupation. In non-international armed conflict,
international humanitarian law ceases to apply at the end of the armed conflict.
However, persons deprived of their liberty or whose liberty has been restricted for
reasons related to the armed conflict continue to benefit from the protections of
international humanitarian law until the end of such deprivation or restriction of
liberty
• Parlementaires are used not only for negotiations about a cessation or temporary
suspension of hostilities but also for negotiations on such matters as the recovery
of wounded persons or exchange of prisoners, and for communicating messages
to an adversary’s forces.
• A ceasefire agreement is defined as a temporary interruption of military
operations which is limited to a specific area and will normally be agreed upon
between the local commanders. It shall generally serve humanitarian purposes, in
particular searching for and collecting the wounded and the shipwrecked,
rendering first aid to these persons, and removing civilians.
• An armistice agreement is characterized by the intention to provide an
opportunity for making preparations for the termination of an armed conflict. Its aim
is to terminate hostilities permanently. That is what distinguishes an armistice from
a ceasefire. An armistice may be local As a matter of principle, however, an
armistice agreement shall be designed to suspend military operations between the
parties to the conflict and to pave the way for peace negotiations.
GEOGRAPHICAL SCOPE
• In international armed conflicts, military operations may only be carried out in:
• the territories of the parties to the conflict as defined by the national
boundaries;
• the high seas (including the airspace above and the sea floor); and
• exclusive economic zones.
RELATIONS GOVERNED BY IHL
The relations governed by international humanitarian law include:
1. Protection of civilians: IHL requires parties to a conflict to distinguish between
civilians and combatants, and to take all necessary precautions to minimize harm
to civilians. Civilians may not be attacked, and they must be treated humanely.
2. Treatment of prisoners of war: IHL provides for the humane treatment of
prisoners of war and prohibits torture, cruel treatment, and other forms of
inhumane treatment.
3. Use of weapons: IHL restricts the use of certain weapons that are considered to
be indiscriminate or that cause unnecessary suffering. For example, the use of
chemical or biological weapons is prohibited under IHL.
4. Protection of cultural property: IHL requires parties to protect cultural property,
such as museums, libraries, and historic sites, from damage or destruction.
5. Protection of humanitarian workers: IHL provides protection for humanitarian
workers, such as medical personnel and aid workers, who are involved in providing
assistance to those affected by armed conflict.
6. Conduct of hostilities: IHL regulates the conduct of hostilities, including the
means and methods of warfare. It requires parties to take precautions to avoid
harming civilians and civilian objects, and prohibits attacks that are likely to cause
excessive harm to civilians compared to the expected military advantage.
SOURCES OF IHL
1. Customary International Humanitarian Law
• Derived from “a general practice accepted as law” [ICRC]:
• Often unwritten;
• Sources:
• Official accounts of military operations;
• Military manuals;
• National legislation; and
• Case law
• Requirement that States believe:
• That the practice is legally binding on them as a member of the
community of nations;
• That they must follow the practice; and
• That they are not free to depart or deviate from the practice.
• “Opinio juris”
• Excludes:
• Practices not widely followed by other nations; and
• Practices followed solely because of policy or convenience.
• Applies in situations not covered by treaties:
• Nations not party to a treaty; and
• Non-international conflicts;
• Acts not specifically mentioned in treaties;
• Armed non-state actors.
• Grounds for prosecution for violations.
NÜREMBERG TRIALS
 The trials uncovered the German leadership that supported the Nazi
dictatorship. Of the 177 defendants, 24 were sentenced to death, 20 to lifelong
imprisonment, and 98 other prison sentences. Twenty five defendants were found
not guilty. Many of the prisoners were released early in the 1950s as a result of
pardons.
NÜREMBERG PRINCIPLES
Principle I
• Any person who commits an act which constitutes a crime under international law
is responsible therefor and liable to punishment.
Principle II
• The fact that internal law does not impose a penalty for an act which constitutes
a crime under international law does not relieve the person who committed the
act from responsibility under international law.
Principle III
• The fact that a person who committed an act which constitutes a crime under
international law acted as Head of State or responsible Government official does
not relieve him from responsibility under international law.
Principle IV
• The fact that a person acted pursuant to order of his Government or of a superior
does not relieve him from responsibility under international law, provided a moral
choice was in fact possible to him.
Principle V
• Any person charged with a crime under international law has the right to a fair
trial on the facts and law
Principle VII
• Complicity in the commission of a crime against peace, a war crime, or a crime
against humanity as set forth in Principles VI is a crime under international law.
Principle VI
The crimes hereinafter set out are punishable as crimes under; international law:
• Crimes against peace:
• Planning, preparation, initiation or waging of a war of aggression or a war
in violation of international treaties, agreements or assurances;
• Participation in a common plan or conspiracy for the accomplishment of any
of the acts mentioned under (i).
• War crimes: Violations of the laws or customs of war which include, but are not
limited to, murder, ill-treatment or deportation to slave-labor or for any other
purpose of civilian population of or in occupied territory, murder or ill-treatment of
prisoners of war, of persons on the seas, killing of hostages, plunder of public or
private property, wanton destruction of cities, towns, or villages, or devastation not
justified by military necessity.
• Crimes against humanity: Murder, extermination, enslavement, deportation and
other inhuman acts done against any civilian population, or persecutions on
political, racial or religious grounds, when such acts are done or such persecutions
are carried on in execution of or in connection with any crime against peace or any
war crime.
ROME STATUTE – INTERNATIONAL CRIMINAL COURT (2002)
For the purpose of this Statute, "war crimes" means:
 Other serious violations of the laws and customs applicable in international
armed conflict, within the established framework of international law, namely, any
of the following acts: …
 Other serious violations of the laws and customs applicable in armed
conflicts not of an international character, within the established framework of
international law, namely, any of the following acts: …
ICRC Codification
• Begun in 1995, completed after 8 years
• 2 volumes totaling over 5,000 pages
• Identified 161 customary rules in practice today
• 159 apply to international armed conflict
• 149 apply to non-international armed conflict
2. Treaties
• The “Hague Stream” - Regulation of the means and methods of warfare:
• Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons
and on their Destruction [1972];
• 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 [1980].
• Protocol on Blinding Laser Weapons [1995];
• Convention on the Prohibition of the Use, Stockpiling, Production
and Transfer of Anti-Personnel Mines and on their Destruction
[1997].
•
•
•
The “Geneva Stream” - Provides protection to non-combatants and
civilians:
• Geneva Conventions I – IV [1949]
• Common Article 3 of the Conventions
• Protocols I & II [1977]
• Protocol III [2005]
Geneva Conventions of 1949
• Convention (I) for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field;
• Convention (II) for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea;
• Convention (III) relative to the Treatment of Prisoners of War; and
• Convention (IV) relative to the Protection of Civilian Persons in Time
of War.
Application of the Geneva Conventions
• Applies only to States who have signed the Conventions:
• Only Niue has not signed the Geneva Conventions;
• Universal acceptance?
• Apply only in “international armed conflicts”;
• Wars or conflicts between 2 or more nations and wars of
national liberation;
• “Internationalized internal conflicts”?
• Exception: Common Art. 3 to the Conventions
COMMON ARTICLE 3
“Art. 3. In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be bound
to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces
who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour, religion or faith,
sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above-mentioned persons:
a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for. An impartial humanitarian
body, such as the International Committee of the Red Cross, may offer its services
to the Parties to the conflict.
“The Parties to the conflict should further endeavour to bring into force, by means of
special agreements, all or part of the other provisions of the present Convention.
“The application of the preceding provisions shall not affect the legal status of the Parties
to the conflict.”
COMMON ARTICLE 3 APPLICATION
• Applies in “case[s] of armed conflict not of an international character…”;
• Now, customary IHL;
• Binds each party to the conflict;
• Sets out minimum standards for protection & care;
• Calls for parties to adopt other provisions of the Geneva Conventions Allows ICRC
the right to offer its services;
• Does not affect legal status of the Parties.
PROTOCOLS TO THE GENEVA CONVENTION
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts [Protocol I, 1977];
• Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of Non-International Armed Conflicts [Protocol II, 1977];
and
• Protocol additional to the Geneva Conventions of 12 August 1949, and relating to
the Adoption of an Additional Distinctive Emblem [Protocol III, 2005].
3. “International Accords/Guidelines”