Martens Clause

The Martens Clause (pronounced /mar'tɛnz/) was introduced into the preamble to the 1899 Hague Convention II – Laws and Customs of War on Land.

The clause took its name from a declaration read by Friedrich Martens, the Russian delegate at the Hague Peace Conferences 1899 and was based upon his words:

Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.

The Clause appears in a slightly modified form in the 1907 Hague conventions:

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 the public conscience.

The Clause was introduced as a compromise wording for the dispute between the Great Powers who considered francs-tireurs to be unlawful combatants subject to execution on capture and smaller states who maintained that they should be considered lawful combatants.

The clause did not appear in the Geneva Conventions of 1949, but was it included in the additional protocols of 1977. It is in article 1 paragraph 2 of (which covers international conflicts), and the fourth paragraph of the preamble to (which covers non-international conflicts). The wording in both is identical but slightly modified from the version used in the Hague Convention of 1907:

Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience

In its commentary (Geneva 1987), the ICRC states that although the Martens Clause is considered to be part of customary international law, the plenipotentiaries considered its inclusion appropriate because:

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