Potential of The Martens Clause

Journal of Conflict & Security Law Oxford University Press 2012; all rights reserved.
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doi:10.1093/jcsl/krs013
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Reinterpreting Competing Interpretations of the Scope

and Potential of the Martens Clause
Michael Salter*
Abstract
1. Introduction: questions and issues

Within international law scholarship and judicial practice, reliance upon widely
drawn, moralistic, even theological, categories, such as humanity, civilization
and conscience, as contained within the 1899 Martens Clause for instance, has
often proved controversial, and especially provocative in terms of both the ambiguity and desirability of their specifically doctrinal and policy implications.1
*
1
Professor of Law, Lancashire Law School, UCLan. Email: msalter1@aol.com

On the debate on the possible relevance and limits of the Martens Clause, particularly
during armed conflict and with respect to the protection of civilians, see: T Fried, The
Electronic Battlefield and the Dictates of the Public Conscience (1972) Revue Belge
de Droit International 431, 4512; H Strebel, Martens Clause Encyclopedia of Public
International Law vol 3 (1982) 252; S Miyazaki, The Martens Clause and International Humanitarian Law in C Swinarsky (ed) Studies and Essays in Honour of Jean
Pictet (ICRC 1984) 433; P Benvenuti, La clausola Martens e la tradizione classica del
diritto naturale nellla codificazione del diritto dei conflitti armati, in Scritti degli
allievi in onore di Giuseppe Barile (Padova 1995) 171; R Ticehurst, The Martens
Clause and the Laws of Armed Conflict (1997) 317 Intl Rev Red Cross 12534;
VV Pustogarov, The Martens Clause in International Law (1999) 1 Journal of the
History of International Law 12535; T Meron, The Martens Clause, Principles of
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This article, whose materials are extracted from a wider project on the doctrinal
and humanitarian significance of the 1899/1907 Martens Clause, reviews the
strengths and limitations of competing interpretations and judicial applications
of this Clause. It identifies four distinct, if interrelated, approaches to defining its
meaning and scope assessing each in turn. We take issue with recent scholarship
that restricts its applicability in various ways that deny its status as a separate and
distinct legal principle of direct and independent applicability to organized atrocities against civilians. We also dispute the view that this Clause is best interpreted as an aide to judicial interpretation, rather than as an independent source
of international criminal law, by showing that this interpretation is inconsistent
with a number of important cases whose authority appears to be well established
and unobjectionable. Furthermore, the moral imperatives that clearly shape the
language of the Clause and have been realized in many of its accumulated judicial
applications, positively require this measure to be interpreted and applied as a
freestanding legal normalbeit one that has to operate as supplement for, rather
than alternative to, other more specific legal rules and principles.
404
Michael Salter
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. They
declare that it is in this sense especially that Articles 1 and 2 of the
Regulations must be understood.9
2
3
4
5
6
7
8
Humanity, and the Dictates of Public Conscience (2000) 94 AJIL 7889; A Cassese,
The Martens Clause: Half a Loaf, or Simply Pie in the Sky? (2000) 11 EJIL 187216;
W Schabas, Genocide in International Law: The Crime of Crimes (CUP 2000) 1516,
23; R Shircks, Die Martenssche Klausel, Rezeption und Rechtsqualitat (2002) 60
Volkerrecht und Auenpolitik 200; J Wieczorek, Unrechtmaige Kombattanten und
humanitares Volkerrecht (Verlag 2005); HM Hensel, The Law of Armed Conflict,
Constraints on the Contemporary Use of Military Force (Cornwall 2005); J Sarkin,
The Historical Origins, Convergance, and Interrelationship of International Human
Rights Law, International Humanitarian Law, International Criminal Law, and Public
International Law and their Application from at least the Nineteenth Century (2007)
1 Human Rights and Legal Discourse 125210.
C Weeramantry, Universalising International Law (Martinus Nijhoff 2004) 256.
Sarkin (n 1) 125, 128.
Pustogarov (n 1) 125.
For a detailed account of Martens aims and actions, see Cassese (n 1).
Sarkin (n 1) 150.
ibid 151.
Pustogarov (n 1) 1256; F Kalshoven and L Zegveld, Constraints on the Waging of
War: An Introduction to International Humanitarian Law Cambridge University Press
(ICRC 2010) 22.
187 CTS 227 (1899).
And yet this Clause constitutes one of the origins of international law generally
and international humanitarian and human rights law in particular.2 It has also
shaped the development of customary international law, not least by affording
legal protection to groups and individuals during both armed conflicts and peace
time.3
The Martens Clause was named after Fyodor Fyodorovich Martens (18451909),
a Russian jurist and delegate to the first of The Hague Conferences, 18991907,
attended by 26 predominately European states.4 In 1899, this conference unanimously adopted the Clause as part of its Preamble to Convention (II) with respect
to the Laws and Customs of War on Land.5 This unanimous acceptance by participating states implies that its core principles were already generally accepted,
albeit perhaps as dictates of morality not law.6 The Clause was not the origin of
the principles of humanity but rather the specific acceptance by states in treaty form
that these rules already existed outside of treaty law.7 Martens proposed the declaration after delegates failed to agree on the status of civilians who took up arms
against an occupying force.8 The 1899 version, which is too often cited with the
important final sentence omitted, asserts that:
Scope and Potential of the Martens Clause
405
10
11
12
13
14
15
Eighth recital, Preamble, para 7, Convention (IV) respecting the Laws and Customs
of War on Land, and Annex (opened for signature 18 October 1907, entered into force
26 January 1910) (1908), AJIL 2 (supp) 90.
Ticehurst (n 1) 125, 127; Pustogarov (n 1) 129; MM De Guzman, The Road from
Rome: The Developing Law of Crimes Against Humanity (2000) 22 Human Rights
Quarterly 344.
cf R Provost, Reciprocity in Human Rights and Humanitarian Law (1994) 65 Brit
Ybk Intl L 383 arguing that IHL contains areas where reciprocity remains significant.
Z Yihdego, Darfur and Humanitarian Law: The Protection of Civilians and Civilian
Objects (2009) 14(1) JCSL 37, 41.
Eight years later, a revised, updated and more influential version was inserted
into the Preamble to Hague Convention (IV) 1907.10 Here, the term inhabitants replaced populations, the older term law of nations displaced international law, civilized peoples was curiously substituted for civilized nations,
whilst requirements gave way to the more active term dictates. However, it is
difficult to identify any significant and noteworthy differences that stem from
these alterations to phraseology, or to regard the more influential 1907 version
as either extending or reducing the scope of its immediate predecessor.11
Although both the 1899 and the 1907 versions refer to laws of humanity,
which arguably retains a natural law connotation addressed later in this article,
these are now commonly defined by international lawyers as principles of humanity, which possibly dilutes this element of meaning.12 It may be significant
for the interpretation of the Clause that paragraph 2 of the 1907 Preamble states
that the Contracting Parties are: animated by the desire to serve, even in the
case of war, the interests of humanity and the ever-progressive needs of
civilization.
Both early versions of this measure recognize a distinction, and hence a
potential conflict between, de facto state usages and the possible implications
of international humanitarian law principles regulating such practices. The latter
are expressed here as unconditional obligations.13 Despite its lofty rhetoric
echoing natural law abstractions, the Clause also contains a measure of pragmatic realism. It recognizes that the absence of a world law-making body means
that there will inevitably be a disparity and time-lag between state practices and
legal principles. In particular, a mismatch between, on the one hand, de facto
state practices and treaty law provisions motivated by politically defined
national self-interest, and, on the other, the necessary normative requirements
of any justifiable and viable system of international law protecting basic human
rights. Even on the most restrictive interpretation of its scope, it suggests that
even in cases outside the ambit of the Hague Conventions governing international armed conflict, civilians and combatants continue to be afforded a basic
level of protection.14 The Clause has been re-affirmed in slightly different wording by numerous 20th Treaties and Conventions, including the 1949 Geneva
Conventions and the 1977 Additional Protocols1 and 2.15
406
Michael Salter
2. Divergent interpretations
16
17
18
19
J Dingwall, Unlawful Confinement As a War Crime: The Jurisprudence of the

Yugoslav Tribunal and the Common Core of International Humanitarian Law
Applicable to Contemporary Armed Conflicts (2004) 9(2) JCSL 133, 1478.
E Crawford, The Treatment of Combatants and Insurgents under the Law of Armed
Conflict (OUP 2010) 2937.
V Morris, Protection of the Environment in Wartime (1993) 27 International Lawyer
(ABA) 775, 780.
McDonald and Sullivan, Rational Interpretation in Irrational Times: The Third
Geneva Convention and the War on Terror (2003) 44 Harvard Intl L J 301, 3045,
308; J Kastenberg, The Customary International Law of War and Combatant Status
(20034) 39 Gonzaga Law Rev 495, 508; J de Preux, The Protocols additional to the
Geneva Conventions (1997) 320 Intl Rev Red Cross http://www.icrc.org/eng/resources/documents/misc/57jnuy.htm; K Dormann, The legal situation of unlawful /
unprivileged combatants (2003) 849 Intl Rev Red Cross 54, 6870: http://www.icrc
.org/eng/resources/documents/misc/5lphbv.htm; BD Tittemore Guantanamo Bay and
the Precautionary Measures of the Inter-American Commission on Human Rights: A
Case for International Oversight in the Struggle Against Terrorism (2006) Human
Rights Law Review 378 fn 23.
The Clauses relative indeterminacy and broad normative import are readily
apparent. Its ambiguous wording and wide scope makes it difficult to determine
precisely its meaning and designated function, and thereby set clear limits to its
judicial application. Such application serves as a reminder that, although this
measure appears highly indeterminate if divorced from contexts of real life application, and considered abstractly purely in terms of legal semantics, such apparent deficiencies are mitigated if we reverse such dubious decontextualization.
That is, if we take the more realistic view that the question of what the Martens
Clause is can be best answered by recognizing the various accumulated meanings it has acquired incrementally through case-law applications, especially in
relation to Nazi war crimes. Here, we can find ample evidence that many of
the more concrete specifications of international humanitarian law stem directly
or indirectly, or can otherwise be inferred from, the principles contained in the
Clause relevant, for example, to all types of armed conflict.16 These include the
principles of distinction, prohibition of indiscriminate attacks, the requirement of
proportionality in attack, military necessity and prohibition on causing unnecessary suffering.17 The question of what this measure signifies is thus best answered
by a realistic and careful re-interpretation of that which, in practice, judges have
successfully achieved by reference to it. Here as elsewhere, law is as law does.
The broad wording of the Clause referring to principles of conscience and
humanity has provided sufficient scope for creative judicial development and
progressive application of its principles to new, and possibly unforeseen,
contexts. These have included emergency situations created by environmental
destruction during armed conflict,18 terrorism and armed insurrection,19 guerrilla warfare, the legality of the use or threatened deployment of nuclear
407
3. Restrictive interpretations
During its submission to the ICJs Advisory Opinion case, the Russian
Federation advanced a particularly restrictive interpretation of the Clause in
keeping with its more general tendency to underplay customary law in favour
of treaty law. This submission claimed that it is best understood as no more than a
stopgap measure fully determined by its original historical context. Hence, the
20
21
22
23
24
E Kalivreakis, Are Nuclear Weapons Above the Law (2001) 15 Emory International
L Rev 683, 710, 71320, 723, 728.
H Gasser, Acts of Terror, Terrorism and International Humanitarian Law (2002)
847 Intl Rev Red Cross 561arguing that the Martens Clause as restated in 1977 is
one of two measures effectively criminalizing acts of terrorism as international crimes;
N van Woudenberg, The Long and Winding Road Towards an Instrument on Cluster
Munitions (2007) JCSL 447, 458; GL Neuman, Humanitarian Law and
Counterterrorist Force (2003) 14 EJIL 283, 291.
Sarkin (n 1) 128; D Campanelli, The Law of Military Occupation Put to the Test of
Human Rights Law (2008) 871 Intl Rev Red Cross 656: 5http://www.icrc.org/eng/
assets/files/other/irrc-871-campenalli.pdf4 (accessed 1 March 2012).
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep
226, 406 (July 8)
(Shahabuddeen, J, dissenting)(Advisory Opinion) at 4056. The present authors,
Maggi Eastwood and Michael Salter, have developed this point in far greater
length in their book chapter Establishing the Foundations for the International
Criminalisation of Acts of Genocide: From the Martens Clause to the International
Criminal Court in P Brehens (ed), Elements of Genocide (Routledge 2012) forthcoming in August 2012.
It is perhaps arguable that two addition models exist defining this measure as a customary norm and a mediator of natural law and legal doctrine but for reasons of space
these cannot be explored as topics in their own right.
weapons,20 use of other weapons of mass destruction by state sponsored terrorist

groups engaged in racist and/or religious sectarian extermination campaigns
against minority groups.21 It has even be cited as a relevant international law
norm by those contesting the allegedly inhumane treatment of illegal combatants and insurgents which, it has been claimed, forms an integral part of the
United States war on terror.22 Hence, the Clause may be interpreted as suggesting that mass slaughters of inconveniently located, or potentially rebellious,
minority groups could, in principle, still be held unlawful even where these occur
outside of a pre-existing armed conflict and fall outside (or predated) established
definitions of crimes against humanity and/or genocide.23
Without suggesting that there are clear-cut or mutually exclusive distinctions
in this field, we would suggest that it is useful to distinguish four different interpretations of the Clause: restrictive definitions; the Clause as a judicial interpretative aide, thirdly, as a distinct and independent legal norm, and finally as a
translator of morality into legal doctrine. Each of these will now be critically
discussed and evaluated.24
408
Michael Salter
25
26
27
28
29
Pustogarov (n 1) 130; Ticehurst (n 1) 125, 127.

Strebel (n 1) 327; Salter and Eastwood (n 23).
M Bourbonniere, Law of Armed Conflict (LOAC) and the Neutralisation of
Satellites or ius in bello satellitis (2004) 9(1) JCSL 43.
Pustogarov (n 1) 131; G Abi-Saab, The Specificities of Humanitarian Law in C
Swinarski (ed), Studies and Essays on International Humanitarian Law and Red
Cross Principles (Martinus Nijhoff, ICRC 1984) 265, 274.
Cassese (n 1) 189. See the 1995 decision of the Constitutional Court of Columbia,
Ruling no C-225/95, English translation reported in M Sasso`li and AA Bouvier (eds),
How Does Law Protect in War? (ICRC 1999) 13631364. Scholars who have identified
this interpretation, and in some cases defended it appear to include: G
Schwarzenberger, The Legality of Nuclear Weapons (Stevens & Sons 1958) 1011;
N Singh and E McWhinney, Nuclear Weapons and Customary International Law
(2nd edn, Martinus Nijhoff 1989) 47; Y Sandoz, C Swinarski, B Zimmermann (eds),
Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 August 1949 (Martinus Nijhoff, ICRC 1987) 39; M Greenwood, Historical
later fulsome codification of the laws of war in 1949 and 1977 through, respectively, the Geneva Conventions and their Additional Protocols, have made this
measure redundant.25 Another less extreme, but still highly restrictive, interpretation suggests that all codifications of law omit some matters that can later
become relevant, and one danger is that such omissions can undermine the customary law status of matters that were not included. On this view, the meaning of
the Clause involves the incremental displacement of the traditional presumption,
supported by the Lotus Principle, that even genocidal acts, in the ordinary, lay
sense of the term embracing the deployment of weapons of mass destruction
against civilians, remain lawful unless expressly prohibited.26
A restricted mode of interpretation could also maintain the scope of the Clause
is confined to the specific treaty (or treaties in post 1899 versions) to which it
formed a part, and thus applies only to signatories. Viewed in this way, its role
here is further limited to preventing a possible regressive construction of that
which, say, the Hague Regulations failed to sufficiently regulate, or otherwise
anticipate.27 Here, regressive simply means a highly legalistic approach to
gaps in these regulations, whose overall purpose was clearly to reduce the inhumanity of war. That is, an interpretation presuming that a lack of regulation of
a state practices, even those that are contrary to this underlying purpose, constitutes an implicit legal authorization.28 Given later and more comprehensive codifications of the laws of war, defenders of a restrictive interpretation could insist
that there is at most only a strictly limited role for the Clause to play, and this in
turn depends upon how one identifies and assesses the gaps within the these
codes.
Cassese summarizes this restrictive mode of interpretation as involving:
a contrario argument whereby the fact that certain matters are not regulated
by the Hague Convention would render belligerents free to behave as they
please, and thereby to disregard any possible limitations flowing from other
international rules (whether they be customary or treaty rules). The clause
would serve solely to avert this dangerous inference.29 On this narrow
409
According to the view of the High Contracting Parties, these provisions,

the wording of which has been inspired by the desire to diminish the evils
of war, so far as military requirements permit, are intended to serve as a
general rule of conduct for the belligerents in their mutual relations and in
their relations with the inhabitants. It has not, however, been found possible at present to concert regulations covering all the circumstances which
arise in practice. On the other hand, the High Contracting Parties clearly
do not intend that unforeseen cases should, in the absence of a written
undertaking, be left to the arbitrary judgment of military commanders.
On a literal reading, this passage appears to support an interpretation that
emphasizes its status as a residual legal norm. That is, a norm which only
comes into play in contexts where there appear to be gaps in the laws of war
developed by the Hague Regulations. On this interpretation, the Clause is confined to operating as no more than an a contrario device, reminding states that
even where there is no formal and express obligation concerning, say, new and
unanticipated military technologies of mass killing, there can still be international law duties, possibly backed up with criminal sanctions.31 Hence, the clause
preempts the conclusion that, in the absence of clearly and expressly formulated
international norms, there is no relevant prohibition on either the means and
methods of warfare.32 The ICJs Advisory Opinion may have had this classic, if
increasingly contested, presumption in mind when, with express reference to the
30
31
32
Development and Legal Basis in D Fleck (ed), The Handbook of Humanitarian Law
in Armed Conflicts (OUP 1995) 28.
Greenwood (n 29) 289.
On this interpretation, see 8 Diplomatic Conference on the Reaffirmation and
Development of International Law Applicable to Armed Conflicts (1978) Official
Records, Doc CDDH/I/SR.3 para 11.
I Henderson, The Contemporary Law of Targeting: Military Objectives,
Proportionality and Precautions in Attack under Additional Protocol I (Martinus
Nijhoff 2009) 40.
interpretation, the Clause is no more than a principle, or meta-rule of interpretation: one that rules out the possibility of the Lotus principle encouraging judicial decisions perverting the underlying humanitarian policy behind the Hague
Regulations.
A restrictive approach of this kind can seek to ground its interpretation primarily on the Clauses original historical context and associated rationale.
Greenwood, for example, argues that the Clause was contained only in the preamble to the 1899 and 1907 Hague Regulations, not their substantive body.
Preambles only precede the norms of the Hague Regulations, and do not establish in themselves any distinct and directly applicable norms.30 In particular, the
restrictive approach emphasizes that the original 1899 version was located at the
end of a passage stating clearly an intention to displace legally unregulated and
arbitrary decisions by military commanders leading to inhumane outcomes:
410
Michael Salter
33
34
35
36
For a general discussion of this issue that features the role of the Clause, see A
Anastassov, Are Nuclear Weapons Illegal? The Role of Public International Law
and the International Court of Justice (2010) 15 JCSL 65.
For example, US President Wilson opposed the creation of crimes against humanity as
part of the Versailles Peace Treaty on this ground. See G Goldberg, The Peace to End
Peace (Harcourt 1969) 151.
For example, Christopher Greenwood claims that public conscience is too vague to
operate as a basis for a separate rule of law (n 29). See also C Greenwood, Belligerent
Reprisals in the Jurisprudence of the ICTY in H Fischer, C Kress, S Luder (eds),
International and National Prosecution of Crimes under International Law: Current
Developments (Verlag Arno Spitz/Springer 2001) 539; See also F Kalshoven,
Reprisals and the Protection of Civilians: Two Recent Decisions of the Yugoslavia
Tribunal in Vohrah and others (eds), Mans Inhumanity to Man: Essays in Honour of
Antonio Cassese (Kluwer 2003) 481. Kalshoven argues that the attempt to read state
practice the way, and use the Martens Clause to compensate for minimal patterns of
such practice, is founded on quicksand. ibid 505.
Martens Clause, it clearly rebutted the idea that simply because the actual or
threatened deployment of nuclear weapons have not been specifically prohibited
or addressed in treaty law, then it follows that their use must be considered
intrinsically lawful.33 In short, the wording of the Clause is thus open to a narrow
interpretation restricting its scope to the Hague Regulations governing only
interstate wars between signatories (as opposed to the mass killing of civilians
during civil wars for example), and then only as a highly limited and optional
a contrario device of judicial construction.
Restrictive interpretations of the kind just discussed can seek to draw support
from broad liberal constitutional principles that are applicable to criminal sanctions in particular. In the sphere of international as well as domestic criminal
law, the presumption of the Lotus principle reiterates one aspect of liberalisms
classic (if essentially undemocratic) model of the rule of law, due process standards and associated resistance to retrospective criminalization.34 Further
endorsement of a restrictive interpretation can stem from traditional positivistic
concerns for optimizing legal certainty and doctrinal determinacy, and
thereby cutting down the scope of broadly defined general principles, especially
those with moralistic and natural law aspects and/or connotations. In other ways,
the positivistic standpoint encourages a negative stance towards all broadly
defined and moralistic categories, such as humanity and dictates of public
conscience.35 From this positivistic perspective, fixated on dreams of legal science, the meaning of such categories allegedly varies from one subjective
interpretation and application to the next.36 If recognized as law, these excessively broad and unacceptably morally inflected categories place no effective
check upon subjective discretion, and hence arbitrary judicial decision-making,
which in turn contradicts the principle of legality itself. This lack of restraint is
allegedly contrary to the rationale of a rule-based modern legal system in which
it is the faithful judicial application of the objective and given meaning of the
411
37
38
39
40
41
42
The US governments Memorandum of Reservation to the 1919 Commissions Report

on the Violations of the Laws and Customs of War exemplifies this positivistic stance
in its rejection of humanity. (Clarendon Press 1919) 64, 73.
GC I, art 63; GC II, art 62; GC III, art 142; GC IV, art 158; AP I, art I.
Advisory Opinion para 87.
Sarkin (n 1) 172.
We have developed and illustrated this point in far more depth in Salter and
Eastwood (n 23).
rules themselves (as opposed to the subjectivity of decision-makers), which

properly determines the outcomes to individual cases.37
There are a number of potentially unsurmountable problems facing defenders
of such restrictive interpretations, each of which has implications for their credibility. First, the idea that, for example, the 1949 Geneva Conventions have rendered the Clause redundant is rebutted by the fact that these conventions
themselves expressly reaffirm this measure. This is especially clear in both
their common and non-denunciation clauses, and their 1977 Additional
Protocols 1 and 2.38 The ICJs Advisory Opinion of 1996 clearly held in relation
to this measure that its continuing existence and applicability is not to be
doubted.39 Whilst the si omnes clause may limit the protections of the Hague
Convention to signatories, because the Martens Clause was a codification of
already established customary international law, non-signatories have become
similarly protected.40 In other words, the restrictive-positivistic view underplays
the force of customary international law despite its frequent recognition and
application by judges. What is more, neither the Geneva Conventions of 1949
nor the Supplementary Protocols of 1977 amount to a complete and final codification lacking unresolved problems, gaps and norms in need of judicial reinterpretation in the light of new situations. How could they? All law is contingent
upon the latest most authoritative judicial application, which remains essentially
contingent upon later acts of judicial recognition or non-recognition which
cannot be entirely predicted in advance, and certainly not controlled by the
strictures and prejudices of legal positivism unreasonably fixated upon unrealistic
notions of doctrinal certainty and legal science.
The inclusion of the Clause not in the preamble but in the basic text of
Protocol I (Article 1) further undermines a strand of the restrictive interpretation. Its inclusion even suggests it has attained the status of a jus cogens norm of
humanitarian law, which in the absence of a positive applicable norm, must be
judicially applied. Far from being a vague and overly general principle that can
be largely ignored in favour of more specific and detailed legal rules, the
Martens Clause has arguably now attained the elevated status of a preemptory
norm, possessing a higher level of authority than such rules, at least in the event
of a conflict between them.41 As part of an article of the Protocol, it undoubtedly
has the direct force of a juridical norm of international humanitarian law possessing universal and binding authority.42
412
Michael Salter
43
44
45
46
Advisory Opinion para 86.

Strebel (n 1) 327.
Key case law includes the Corfu Channel case [1949] ICJ Rep 22 concerning Albanias
obligation to notify others of the presence of mines; Nicaragua case (Merits) [1986]
ICJ Rep 226 para 218, and Advisory Opinion para 79. See M Dupuy, Les considerations elementaires dhumanite dans la jurisprudence de la Cour Internationale de
Justice in Melanges en lhonneur de N Valticos (Paris 1999) 11730.
Furthermore, if the purpose of the Clause was little more than an a contrario
reminder to States of their obligations under separately existing rules of customary international law, then it is hard to see why there was ever a need to
create it for that particular purpose. This is because pre-existing considerations
of humanity, which underlie humanitarian law as a whole and are clearly presupposed by the wording of the Clause, would have continued to play that
function in any event.43 In other words, the very fact that this measure was
initially judged necessary and enacted to supplement existing, more detailed
rules, is thus a point counteracting the restrictive viewpoint. This is somewhat
ironic because defenders of this viewpoint themselves appeal strongly to the
original context yet such a reference, more thoughtfully considered, actually
undermines their position.
Another problem with restrictive interpretations, which consider the original
historical role of the Clause as somehow exhaustive, is that, as later paragraphs
will show in considerable detail, it fails to explain how postwar courts have, in
fact, applied this measure. Indeed, it is possible that supporters of such interpretations emphasize the original context of emergence precisely because they
are aware that later case developments, especially in relation to the Nuremberg
and related jurisprudence, have rendered their entire stance problematic. These
case law developments have given the Clause a far wider scope and effect then
the restrictive interpretation would either dictate or predict. In turn, this requires defenders of the restrictive stance to attack a growing body of case law
as if it were somehow essentially unsound: a contradictory position for a positivistic orientation wedded to the idea of law as a fixed system of given rules as
set out in treaties and court decisions.44
Indeed, the idea of restrictive interpretations relying upon the original historical context or original intent is absurd in relation to a measure that, for over a
century, has been repeatedly re-affirmed within numerous different international treaties and conventions, albeit with slight linguistic modifications. The
appropriate question for us is not how best to interpret this measure in a way
was originally intended, (possibly an impossible aim in any event given the
Clause arose as a political-diplomatic compromise measure to resolve an impasse) but rather how to remain broadly consistent with the implications of
patterns of past and present judicial and other authoritative deployments of
this measure.45 Thus, when deciding upon its meaning, scope and purpose, it
is necessary for judges to consider the implications of the Clauses total trajectory
from 1899 to the present.46 Roling, for example, is clearly right to reject any
413
4. The Clause as an interpretative aide

A second, wider and certainly more convincing approach, treats the Clause as
essentially a judicial guideline. It is an aide for judges seeking to resolve disputes
between two of more possible interpretations of an ambiguous or imprecise legal
rule and/or a situation where there is doubt as to this rules scope and applicability
to, for instance, a novel context of application.48 For example, during the
American-led Subsequent Proceedings at Nuremberg (NMT, 194648),
the court stated that if faced with two interpretationsone in keeping with the
principles of humanity and moral standards, and one which is against these principlesthen we should of course give priority to the former interpretation.49 In the
event of such problems of ambiguous precedents and conflicting or insufficiently
comprehensive authorities, the Clause authorizes judges to select that interpretation of fact and law which best gives effect to the standards endorsed by this
measure. This is because such a choice is most likely to be optimally consistent with
the general spirit of such law, including its underlying humanitarian policy and
rationale. Where other legal measures, such as human rights declarations, further
specify the meaning of principles of humanity, then judges applying the Clause as
an interpretative aide can also draw upon these declarations to preclude contrary
interpretation. In Casseses words: First, it could operate at the interpretative
47
48
49
The law of international armed conflict is: predicated on a subtle equilibrium between. . . military necessity and humanitarian conscience. Y Dinstein, The Conduct of
Hostilities under the Law of International Armed Conflict (CUP 2004) 16.
Strebel, Martenssche Klausel in Strupp and Schlochauer (eds), (1961) 2 Worterbuch
des Volkerrechts, 484485; Sarkin (n 1) at 153.
3 Control Council No 10 Trials, 954, 979 (US v Altstoetter) (1951). See also, The
Attitude of States Toward the Development of Humanitarian Law in A Cassese (ed),
Proceedings of the 1976 and 1977 Conferences (IRRC 1980) 221, 257.
narrow historical interpretation of the clause, which is not borne out by later
events, including the IMT judgment, and the Rauter cases discussed below.
Despite their generally narrowly positivistic and semantic-legalistic approach,
restrictive interpretations also seem to contradict the literal wording of the
Clause itself. It is precisely the latters generality, and hence broad and partly
indeterminate scope, which enables this measure to discharge its designated
legal role as a legal principle. That is, to fill gaps in given legal codes by reference to a broad legal principle supportive of basic fundamental humanitarian
obligations and rights that serve to counter-balance otherwise one-sided justifications based purely on military necessities.47 In particular, the restrictive interpretation fails to explain how later case law has regularly treated the Martens
Clause as an interpretative aide supportive of expansive liberal interpretations
of other provisions, andmore radicallyrecognizing its standards as independent principles of direct applicability. The next two sections consider these
alternative approaches.
414
Michael Salter
level: in case of doubt, rules of international humanitarian law should be construed

in a manner consonant with standards of humanity and the demands of public
conscience.50 In support, he cites the Conseil de guerre de Bruxelles KW case:
In 1950, the KW decision employed established human rights standards as interpretative guidelines for generating an expansive interpretation of the Hague
Regulations.52 This approach is not unique. Writing judicially in the controversial Kupreskic case,53 the ICTY President Antonio Cassese argued that the
Clause should be judicially interpreted and applied primarily as a principle of
judicial interpretation:54
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.55
Casseses interpretation insists a judicial aide approach enables, perhaps in one
sense even requires, courts that are facing a conflict of doctrinal interpretation to
construe the alleged legality of military attacks upon civilians in a restrictive
way, especially where an alternative more permissive interpretation would have
inhumane implications:
In the case under discussion, this would entail that the prescriptions of
Articles 57 and 58 [of the First Additional Protocol of 1977] (and of the
50
51
52
53
54
55
Cassese (n 1) abstract.
ibid 207.
ibid.
For a summary of criticisms, see R Cryer, Of Custom, Treaties, Scholars and the
Gavel: The Influence of the International Criminal Tribunals on the ICRC Customary
Law Study (2006) JCSL 239, 256.
Prosecutor v Kupreskic et al (Judgment) ICTY 95-16-T (14 January 2000) para 525.
This case recognized that the Advisory Opinion had reaffirmed the customary status
of the Clause, ibid.
ibid.
This judgement is exceedingly interesting in at least two respects; first,

because it demonstrates that the clause may be of invaluable importance
at the interpretative level and secondly, because it points to the proper
modalities of construction of customary principles or rules of humanitarian law. By virtue of the clause, reference should thus not be made to
vague principles of humanity, but rather to those human rights standards
that have been laid down in international instruments such as the
Universal Declaration. They may, among other things, be used as guidelines for determining the proper interpretation to be placed upon vague
or insufficiently comprehensive international principles or rules.51
415
This ICTY judgement also suggests that, even when treated as no more than a
judicial aide, the flexibility of the Clauses wording can significantly facilitate the
emergence of new customary rules on international humanitarian law, even where
state practice is scant, or lags behind authoritative legal commentaries
(or opinio), or is inconsistent.57 Writing extra-judicially, Cassese claims: the
clause, while operating within the existing system of international sources, could
serve to loosen in relation solely to the specific field of humanitarian law
the requirements prescribed for usus whilst at the same time raising opinio to a
rank higher than that normally admitted.58 He also suggests that courts have
referred to:
[H]umanity . . . only to spell out the notion that in interpreting international rules one should not be blind to the requirements of humanity, or
to find international standards serving the purpose of circumscribing the
discretionary power of belligerents in the face of loose international rules,
or to stress that the clause expresses the spirit behind the treaty or
56
57
58
ibid paras 5256.

See also Prosecutor v Tadic (Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction) ICTY-94-1-AR72 (2 October 1995) para 527, where, as regards the customary rule prohibiting reprisals against civilians, the Appeal Chamber
states, This is however an area where opinio juris sive necessitates may play a much
greater role than usual as a result of the aforementioned Martens Clause. In the light
of the way states and courts have implemented it, this Clause clearly shows that
principles of international humanitarian law may emerge through a customary process
under the pressure of the demands of humanity or the dictates of public conscience,
even where state practice is scant or inconsistent. The other element, in the form of
opinio necessitatis, crystallizing as a result of the imperatives of humanity or public
conscience, may turn out to be the decisive element heralding the emergence of a
general rule of humanitarian law. cf. Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep
14 para 184.
Cassese (n 1) abstract.
corresponding customary rules) must be interpreted so as to construe as

narrowly as possible the discretionary power to attack belligerents and,
by the same token, so as to expand the protection accorded to civilians.
As an example of the way in which the Martens clause may be utilised,
regard might be had to considerations such as the cumulative effect of
attacks on military objectives causing incidental damage to
civilians. . . . However, in case of repeated attacks, all or most of them
falling within the grey area between indisputable legality and unlawfulness, it might be warranted to conclude that the cumulative effect of such
acts entails that they may not be in keeping with international law.
Indeed, this pattern of military conduct may turn out to jeopardise excessively the lives and assets of civilians, contrary to the demands of
humanity.56
416
Michael Salter
customary formation of most rules of international humanitarian

law. Thus, the clause has implicitly or explicitly been used as a sort of
general instruction concerning the interpretation of certain international
rules or as a means of better understanding the thrust of modern humanitarian law.59
59
60
61
62
63
ibid 208.
Prosecutor v Kupreskic et al paras 52136.
See eg Greenwood (n 29) Kalshoven (n 29) 481. The implications of this case has also
been rejected by the Ministry of Defence, Manual of the Law of Armed Conflict
(London 2004) 421.
The present authors have demonstrated this point elsewhere, see Salter and Eastwood
(n 23).
I Scobbie, Principle or Pragmatics? The Relationship between Human Rights Law
and the Law of Armed Conflict (2009) 14 JCSL 449. More generally, see G von
Glahn, The Protection of Human Rights in Time of Armed Conflicts (1971) 1
Israel Yearbook on Human Rights 208 at 212213.
By implication, the Martens Clause authorizes the criminal prosecution of persons having committed acts inconsistent with those rules as recognized by opinion, particularly where this enhances the protective role and purpose of
international humanitarian law to promote humane courses of action even
during armed conflict.60
Casseses interpretative aide approach is certainly consistent with recognising
this Clauses reforming implications: many of which have, as noted above, generated negative reactions from more positivistic and/or conservative defenders
of more restrictive approaches.61 For instance, operating as an interpretive aide,
the Clause has shaped the interpretation and application of specific international
rules in a direction that was ever closer to the effective criminalization of acts of
genocide as violations of principles of humanity.62
This has occurred primarily because relevant legal rules and principles have to
be interpreted and applied in the interpretative context of Clauses principles,
and thus in a manner that establishes the optimal coherence between them and a
viable interpretation of what is consistent with broader principles of humanity
and the dictates of public conscience. In other words, where judges adopt the
interpretative aide approach, their aim can be to ensure that the concrete legal
rules applied to the facts of the case appears as an instance of this general
principles practical application, its concrete specification and real life instantiation. In part, this explains how the Clause has encouraged a particularly creative and expansive form of judicial law-making relevant to atrocities by
requiring judges to bridge the gap between the implications of a reasonable
interpretation of its general terms and norms, which they are instructed to
define, and the more concrete, detailed legal rules relevant to attacks upon
groups of civilians.63
There is considerable case-law evidence, whichif interpreted in a particular
waysupports the judicial aide approach. Indeed, throughout the 20th century,
417
In the light of the way States and courts have implemented it, this Clause
clearly shows that principles of international humanitarian law may
emerge through a customary process under the pressure of the demands
of humanity or the dictates of public conscience, even where state
64
65
66
67
Sarkin (n 1) 1545.
Advisory Opinion Dissenting Opinions of Judge Shahabuddeen 375, 406, and Judge
Weeramantry 429, 493; G Fitzmaurice The General Principles of International Law
Considered from the Standpoint of the Rule of Law (1957-II Rec des Cours) 1, 7. See
also Prosecutor v Hadzihasanovic (Unreported, 12 November 2002) (UN ICT (Trial)
(Yug) dissenting opinion of Judge Hunt, para 40; Pustogarov (n 1) 132.
Sarkin (n 1) 15455.
Kupreskic para 527.
and in addition to representing an early, substantive treaty provision of international humanitarian law, the Clause has functioned as a judicial guide with
reforming implications in practice. Judge Theodor Meron, a former President of
the ICTY, has recognized that the Clauses humanitarian rhetoric and norms
have attained a central place as a motor driving the incremental judicial expansion of the scope of international humanitarian law ahead of the norms followed
by state practices.64 In terms of law reform, this is important because if international law judges interpret state practice as a decisive factor, then this can, of
course, operate in an overly conservative manner that calls into question the
necessity for international humanitarian law itself. This is because it displaces
the vital tension between often problematic, even genocidal, practices on the
one hand, and legal principles designed to regulate such practices in ways that
minimize social harms. If state practices are regulated decisively only by norms
derived from such practices themselves, then in effect the status quo becomes its
own criteria for justification.65 It would be perverse to endorse a principle that
asserts the more widespread is a certain type of human rights abuse as a conventional state practice, such as the ill-treatment of minority groups, then the
greater is its legality. This may be a principle of and charter for inter-state
lawlessness, it cannot be a principle of international law. For obvious reasons,
states can often be expected to resist expansion of their potential legal liabilities,
particular major powers possessing nuclear weapons and other devices of mass
destruction.66
Fortunately, on our reading, the Clause authorizes a practice of judicial interpretation and application that supersedes this perverse scenario. For instance,
the Kupreskic decision clearly recognized that, as an interpretative aid, the
Clause has contributed to the progressive widening of international humanity
law to the point where this is no longer slavishly dependent upon conventional
patterns of state practice where these are inconsistent with opinion. Indeed, the
Kupreskic decision re-emphasized the importance of the elementary considerations of humanity for the judicial re-interpretation and application of rules of
international humanitarian law in ways that constitute in practice a form of
judicial law reform, even law making.67 In particular, it recognized that:
418
Michael Salter
practice is scant or inconsistent. The other element, in the form of opinio

necessitates, crystallising as a result of the imperatives of humanity or
public conscience, may turn out to be the decisive element heralding
the emergence of a general rule or principle of humanitarian law.68
68
69
70
71
72
73
ibid.
ibid.
For a sympathetic analysis that broadly welcomes the implications of this development, see J-M Henckaerts and L Doswald-Beck, Customary International
Humanitarian Law (CUP 2005) 51213. For a trenchant criticism that this decision
is out of line with prior law, see Greenwood (n 29) 539; Kalshoven (n 29) 481, 505.
Rome Statute, Preamble, paras 4 and 6.
See O Triffterer and M Bergsmo, Preamble in O Triffterer (ed), Commentary on the
Rome Statute of the International Criminal Court, Observers Notes, Article-by-Article
(2nd edn, Hart Publishing 2008) noting the preamable operates as: a sort of Martens
Clause recalling that just because crimes are not dealt with by the Statute, this does
not mean that there is now impunity for them. ibid 11.
Salter and Eastwoood (n 23).
The Court further maintained that this constituted a new approach to customary international law that resulted from a general transformation of humanitarian law, ie from the humanization of armed conflict.69
The Trial Chamber also drew upon an expansive interpretation of the
Martens Clause as authority for the controversial conclusion that customary
law contains a prohibition of reprisals against civilians and civilian property,
which is identical to the treaty prohibition contained in Additional Protocol I,
and directly applicable solely for international armed conflicts. This has certainly
proved to be a creative judicial act of quasi-law-making because a strong argument can be made that these provisions were not in fact introduced as a codification of customary law rules and, as acknowledged, there is little consistent
pattern of state practice to support this contention.70 A possible principled humanitarian justification is that military actions often exert a direct and disastrous
consequence for civilians. Hence, it would be problematic on humanitarian
grounds to wait for a settled pattern of state practice of protection to arise.
The Clause-as-interpretative-guide approach can draw further support from
the Preamble to the ICC Rome Statute. This refers specifically to a positive
customary obligation on states to prosecute acts of genocide, crimes against
humanity and war crimes - even where these fall outside the ICCs own jurisdiction.71 It is arguable that, notwithstanding ambiguous wording, this statement
re-affirms the implications of the Martens Clause with respect to setting out
principles of judicial interpretation and application of a broad class of crimes
that states are legally obliged to prosecute.72
Advocates of the interpretative aide approach can also point to how the
Clause has shaped the interpretation and application of specific international
rules in a direction that has brought them ever closer to the effective criminalization of acts of genocide as violations of principles of humanity.73 This has
occurred because relevant legal rules and principles protective of civilians
419
The terms of the Martens Clause themselves make it necessary to point to

a rule of customary international law which might outlaw the use of nuclear weapons. Since the existence of such a rule is in question, reference
to the Martens Clause adds little.74
Hence, this approach works tolerably well in the less demanding case of resolving a conflict between two legal rules derived from treaty or customary law, or
where the existing rules lack precision. Yet, it clearly fails when subjected to
74
Written statement of the United Kingdom, Nuclear Weapons ICJ Pleadings (2 June
1994) reprinted in (1994) Brit Ybk Intl L 712 para 32.
mayas illustrated by the Kupreskic decisionbe judicially interpreted and

applied in the context of Clauses principles of humanity and public conscience. This can take place in a manner that establishes the optimal coherence
between their concrete implications for the facts of the given case, and the most
viable interpretation of whatever is consistent with broader principles of humanity and the public conscience. The overall aim and result of this dynamic process
can be to ensure that the former operates as an instance of the latters practical
application and realization.
In other words, even when the Clause is understood as no more than a guide
to judicial interpretation, it nevertheless authorizes judges to engage in an incremental extension of legal provisions relevant to illegal acts to cover circumstances that could otherwise fall outside the scope of, say, the prevailing legal
protections for civilians. In this respect, the interpretative application of this
clause facilitates judges engaging actively in the progressive politics of the
ever-greater enforcement of international human rights, with the added advantage of not ever having to expressly abandon their more traditional stance of
non-political neutrality. The latter is often demanded if judges are to avoid
controversy and/or successful appeals against their decisions. Highly elastic,
and hence permissive, principles of humanity and public conscience are,
therefore, especially useful measures for facilitating a judicial politics of depoliticization: a politics that includes a form of judicial law-making strategically
disguised as mere acts of faithful application of given legal doctrine.
There can be denying the relevance and the support this judicial aide approach to the Clause has received from both case law and scholarly writing.
However, we also need to recognize the limitations that flow from this approach.
These are particularly apparent in contexts where, for example, during an armed
conflict there are no other relevant doctrinal measures affording protection to
civilians. Hence, in the absence of such a rule regulating the issue at hand, it is
pointless to appeal only to the principles affirmed by the Clause. This is because
the latter is deemed essentially parasitic upon a pre-existing and clearly pertinent
rule. The British governments submission to the ICJs Advisory Opinion, which
some consider a predictable act of national self-interest, clearly exemplified this
approach:
420
Michael Salter
75
76
77
Para 84expressly recognizing its customary status. See also the Dissenting Opinion
of Judge Weeramantry 2609.
Para 525.
Salter and Eastwood (n 23).
a more stringent test: Namely, where protective rules necessary for humanitarian goals are themselves either lacking or clearly inapplicable.
In addition, focusing exclusively upon this interpretative judicial aide function
tends to ignore the equally important question of the extent to which a series of
judicial and institutional endorsements, including both the ICJs Advisory
Opinion,75 and the Kupreskic decision,76 have now incorporated the Clause
into part of customary international law directly applicable as such.77
Furthermore, treating this measure as a widely drawn and general meta-principle guiding judicial interpretation has the practical drawback of not allowing
affected parties to specify in advance precisely what this potential guidance will
mean for specific cases where it could be pertinent.
Relegating the Clause to a principle for the interpretation and application of
other legal rules and principles, akin to domestic guidelines for the statutory
interpretation of domestic law, can work only because such guidelines are not
themselves first order rules of legal doctrine that must be applied to all cases that
fall within their scope and formal requirements. By contrast, there can be no
legal rule that either requires or prohibits judges hearing cases within international law from resorting to the Clause where the latter is interpreted as no more
than a judicial guideline. On the judicial aide reading of the Martens Clause, the
latter can, at most, operate as a purely optional resource that judges with a more
positivistic and/or black letter orientation, which is hostile to the deployment of
morally loaded ideas within legal decision-making, can simply ignore with impunity. We know of no international law case where a successful appeal has been
justified because a judge at first instance refused to avail of the Clause as a
judicial interpretative aide where there was a credible opportunity to do so.
Here, as elsewhere, it is arguable that there can be no higher and determinate
meta-meta-rule governing the judicial application of interpretative meta-rules
to concrete factual situations. In other words, there can be no guidelines telling
judges when they must follow one mode of interpretation (or meta-rule) in
preference to another, where a narrower literal reading of international law
doctrine is to preferred to an expansive, purposive alternative. Simply suggesting
that judges must take into account the standards of the Clause as a judicial aide
does not serve to resolve or reduce the scope of interpretative choiceand
hence judicial discretion as advocates of this approach imply. Rather, in practice,
it simply multiplies the scope of discretion by introducing additional scope for
debate concerning precisely what is and is not humane and/or conscionable in
the immediate situation in question. In short, a crucial problem with the judicial
aide approach is that it relegates the status of the Clause to a merely optional
421
5. The Clause as an independent legal norm

Arguably, the most expansive and far-reaching construction is that, in additional
to any other functions discussed in the next subsection, the Clause establishes
independently existing and directly applicable international norms and general
principles of conduct particularly relevant to the treatment of civilians.78 Far
from having been rendered anachronistic, it is has now become recognized as jus
cogens norm of customary and treaty law.79
78
79
In document CCW/GGE/XII/WG.1/WP.4 (7 November 2005), the Netherlands

described the dictates of humanity as follows: This principle can either be understood as the foundation on which IHL was developed or as an additional principle
which must guide the decisions and actions of military forces in cases not covered by
specific rules of customary or treaty law. In the view of the Netherlands, it is both. The
clearest formulation of this principle is the Martens Clause in HR [the Hague
Conventions of 1899 and 1907]. See also T McCormack in Report on States
Parties Responses to the Questionnaire on International Humanitarian Law &
Explosive Remnants of War CCW/GGE/XIII/WG.1/WP.12/Add.1 (27 March 2006)
7: States who oppose the use of cluster munitions will rely upon the general principle
of humanity to argue against the deleterious humanitarian consequences of the use of
such weapons. . .
judicial resource that, instead of helping to resolve interpretative issues at

hand, as is claimed, actually multiplies them by pointing towards the need for
a meta-meta-rule to guide how the meta-rule is to be applied, and so on ad
infinitum.
Another problem is that the interpretative aide approach fails to explain the
very rationale for creating the Clause in the first place, namely, its legislative
history. How could the formulation of a mere judicial aide have been sufficient
to resolve a diplomatic impasse between major and minor powers concerning
the legal protections afforded to civilians that had previously prevented international agreement on the 1899 Regulations? Surely, within this law-making
context, only the introduction of a substantive normative principle that added
significantly to the previous situation would have been sufficient to remove the
diplomatic obstacles by giving negotiators of smaller states demanding increased
legal protection for the civilians of potentially military-occupied territories a
way to overcome the impasse? The idea that adding to the negotiating table a
merely optional judicial guideline would have been sufficient to resolve this
impasse surely stretches credibility almost to breaking point?
Recognizing these limitations stemming from the judicial aide approach
prompts us now to consider a more radical and expansive interpretation of
this measure: the idea that it has now become a distinct and independent substantive legal principle.
422
Michael Salter
80
81
82
Strebel (n 1) 327; Munch, Die Martenssche Klausel und die Grundlagen des
Volkerrechts (1976) 36 Zeitschrift fur auslandisches offentliches Recht und
Volkerrecht 34771, 368.
Sarkin (n 1) 151.
Y Sandoz, C Swinarski, B Zimmerman (eds), Commentary on the Additional
Protocols of 8 June 1977 To The Geneva Conventions of 12 August 1949 (ICRC,
1987) 39.
A number of writers characterize this measure in terms that include or imply

an interpretation of this kind that affords it direct normative force.80 Sarkin
recognizes that earlier international treaties and declarations had mentioned
principles of humanity and conscience. However, the added value of the
Martens Clause lay in the express recognition of such principles by states
within a specific treaty, combined with an acknowledgement of their status as
an integral part of customary international law whose validity is independent of
treaty law.81
As a general and overarching principle operating as both source and distinct
cardinal legal norm, the standards of the Clause can be neither exhausted by, nor
confined to, any specific case, or even cluster of related cases. The fact that
earlier cases have not involved the specific type of atrocity carried out by the
same means, cannot be taken as a decisive factor in determining whether this
measure now applies to them. Principles necessarily exceed and overshoot the
more detailed and specific rules that they stand behind, and which instantiate
them. Indeed, the clear wording of the Clause recognizes that the rules of armed
conflict amount to neither a self-contained nor a comprehensive legal regime.
Hence, in cases of clear insufficiency, and where the alternative would be an
unconscionable and/or inhumane result, judges require specific legal authorization to justify their task of filling the resulting gaps with creative decisions
guided by the Clauses broad principles of IHL. If the legal yardsticks of this
measure were not designed to be directly applicable and independent legal
norms, then how could they play their designated function: one that even
more restrictive approaches partly recognize?
The norms of the Martens Clause are historically relative, and hence variable,
even malleable to the point of allowing, even requiring, creative judicial applications in novel contexts exceeding the scope of pre-existing rules or case law,
such as recently devised military and/or terrorist technologies for mass murder.
The ICRCs commentary on the 1977 version appears to support this broad
reading claiming that it contains a dynamic element: proclaiming the applicability of the principles mentioned regardless of subsequent developments of types
of situation or technology.82 This dynamic quality of transcendence from within
also rebuts attempts to confine the current or future application to the context or
scenario for which the Clause was originally intended in 1899 and/or 1907.
In affirming that this measure has now become an independent norm, Roling,
a Dutch scholar, focuses instead on the Clause as re-affirmed by the provisions
on denunciation in the four 1949 Geneva Conventions. He claims that it: contain specific rules of conduct in the event that the treaties are no longer
423
The preamble [to the 1899 and 1907 Hague Convention] is much more
than a pious declaration. It is a general clause, making the usages established among civilized nations, the laws of humanity, and the dictates of
public conscience into the legal yardstick to be applied if and when the
specific provisions of the Convention and the Regulations annexed to it
do not cover specific cases occurring in warfare, or concomitant to
warfare.87
Other cases affirmed this idea even within contexts of international criminal law
centred around conceptions of individual responsibility concerning, for example,
the deportation of civilians by military occupiers.88
In terms of the interpretation of the Clause, the court in the Krupp case
stated: not only the wording (which specifically mentions the inhabitants
before it mentions the belligerents), but also the discussions that took place
83
84
85
86
87
88
BVA Roling, International Law in an Expanded World (Djambatan NV 1960) 38; and
The Law of War and the National Jurisdiction since 1945 (Recueil 1960) 3504
noting that: the laws of humanity are a source of binding rules (ibid 351).
Strebal (n 1) 397.
Cassese (n 1) 1889. This writer endorses the interpretative guide approach.
Trials of War Criminals before the Nuremberg Military Tribunals under Control
Council Law no 10, vol 9 Part II, 1338.
ibid 1341.
USA v Altstotter et al (Justice case) 6 Law Reports of Trials of War Criminals 40, 589
(UN War Crimes Commission, 1948) (US Mil Trib 1947).
binding.83 Strebel also recognizes that it: does not refer simply to three sources
of law (established custom or usages, laws of humanity, and dictates of public
conscience) but it refers also to principles of international law resulting from any
of these three sources or from their combined significance.84 Once again, we can
see here a blurring of the source/normative principle dichotomy.
Cassese also notes that whilst earlier international Declarations had insisted
that humanitarian values were important, these were of a scant legal value because they were never written into international law: By contrast, the Martens
Clause proclaimed for the first time that there may exist principles or rules of
customary international law resulting not only from state practice, but also from
the laws of humanity and the dictates of public conscience.85
At this point, it would be useful to review the case law supportive of the
expansive interpretation we advocate. Early authority for this expanded interpretation is contained in USA v Krupp et al, decided in 1948 by a US Military
Tribunal sitting at Nuremberg. Krupp and others were accused under Articles
4656 of the Hague Convention of ruthless wartime plundering of
German-occupied territories beyond the needs of the army of occupation and
in disregard of the needs of the local economy. The Tribunal discussed the
relevant provisions of the Hague Regulations and found that these were binding
upon Germany: not only as a treaty but also as customary law.86 It then stated:
424
Michael Salter
89
90
91
92
93
In re Krupp and others 15 Ann Dig 620, 622 (US Mil Trib 1948).
See Cassese (n 1) 2034.
S Sivakumaran, Binding Armed Opposition Groups (2006) 55 ICLQ 369, 376suggesting that only general principles of IHL including the Clause apply to non-state
actors in internal armed conflicts.
A Roberts, Righting Wrongs or Wronging Rights? The United States and Human
Rights Post-September 11 (2004) 15 EJIL 721, 733.
MC Bassiouni, Crimes Against Humanity in International Criminal Law (2 rev edn,
Kluwer Law International 1999) 601.
at the time, make it clear that [the clause] refers specifically to belligerently
occupied country.89
Arguably its references to the Clause were not strictly necessary for, or dispositive of, this case because the Regulations were sufficient to justify a conviction, and thus in one sense merely obiter.90 It cannot, however, be denied that
such judicial citations of the Clause as a distinctly legal yardstick at international law clearly add weight to the expansive interpretation. This expression is
surely equivalent to recognizing the Clause as freestanding norm capable of
imposing even individual criminal liability, albeit one that, in this specific
case, could be justified on more specific and less controversial grounds.
Within international criminal law generally, and the Nuremberg jurisprudence
in particular, it is far from uncommon for judges to cite more than one ground
for a criminal conviction, including broadly defined general principles. The fact
that one of these is, by virtue of its specificity, the least controversial does not
suggest that the reminder lack the status of legal norms, not at least unless one
adopts the bizarre stance that all general principles should somehow be purged
from criminal law.91 This would be perverse because the very wording of the
Clause recognizes situations demanding legal regulation by general principles
that fall outside the ambit of existing specific rules. Here, we need to take seriously the role of this measure as a negatively defined, default category whose
purpose is to ensure no person is left without a status under, say, the laws of war.
Its central contribution, even within the context of anti-terrorist measures, is
that: it allows international law to provide minimum guarantees of humanity in
all situations.92
However one interprets the implications of Krupp, there are other cases rejecting defence pleas of retrospective criminalization of Nazi war criminality
that provide even stronger grounds for our argument. For example, in 1949,
the Dutch Special Court of Cassation decided the Rauter case where the defendant was accused of having committed deportations of Jews, murders, plunder and collective penalties within the Netherlands. His main defence was that
the principle of non-retroactivity of criminal acts rendered both his conviction
and death sentence unlawful. Arguably, the judgement justifying his conviction
provides additional authority for the expansive interpretation in that the Clause
was held to be a precursor to the Nuremberg offence of crimes against
humanity.93 This rebutted the defence lawyers suggestions that this defendant
was being subjected to an unconstitutional form of retrospective
425
94
95
96
97
98
99
Reported in Nederlandse Jurisprudentie (1949) no 87, 1556 (English translation in

Annual Digest and Reports of Public International Law Cases, Year 1949 at 541).
ibid.
See Nederlandse Jurisprudentie at 156 and also Annual Digest at 542.
Shircks (n 1) 42.
30 (19491950) Revue de Droit Penal et de Criminologie 5628.
ibid 566. Our interpretation disputes Casseses rejection of the expansive interpretation. Cassese (n 1) 207.
criminalization.94 The Court then noted that such reprisals were also contrary to
the principles mentioned in the Martens Clause. The introduction by Dutch
Special Criminal Law of a crime against humanity was not invalid because:
the said Preamble [Martens Clause] prescribes in so many words submission to
the lois de lhumanite.95 Hence, his conviction involved no violation of the
principle nullum crimen, nulla poena sine praevia lege poenali. This aspect of the
1907 Hague Regulations prohibited the actions for which he was charged.
Hence: every deliberate transgression of these international firmly established
rules of warfare constituted an international crime.96 This case endorses the
view that the norms contained in the Clause serve as historical sources for both
crimes against humanity and have acquired the status of independent norms
whose violation constitutes an international crime.97 Such an argument clearly
presupposes the idea that the Clause originally constituted a freestanding norm,
or had, by the 1940s at least, already acquired this status as part of customary
international law.
If the Krupp and Rauter cases stood alone, then critics could claim they were
unrepresentative. However, the judgements in a number of other postwar Nazi
war crimes trials concerning the retrospectivity defence provide additional support for the expansive interpretation. This is particularly true of Conseil de
guerre de Bruxelles [Auditeur militaire KW 1950]. Here, the defendant, KW, a
German officer, was accused of severely injuring 14 civilians following resistance
to German occupiers in Belgium. The court recognized that there was no article
that expressly imposed individual criminal responsibility for acts of violence or
ill-treatment against inhabitants of occupied territory. Nevertheless, the judges
held that, on the strength of the Martens Clause, it had to apply more general
principles of international law derived from the laws of humanity and the
dictates of the public conscience as evidence of the illegality of inflicting
cruel treatment upon civilians. The court declared that the law of war remained
incomplete and this was precisely one of the cases anticipated by the Clause to
provide a principled legal basis for a criminal conviction.98 Opponents of the
expansive interpretation would find it difficult to dismiss or qualify this particular case because there were no other grounds for the defendants conviction that
were in force at the time he committed his acts of violence. Hence, it is perhaps
the clearest example of a judicial decision that advances an interpretation of the
Clauses standards as independent doctrinal norms of IHL.99
The Klinge decision of Norways Supreme Court in 1946 provides further
support. The Court rejected the defence argument that the defendants
426
Michael Salter
conviction and death sentence for Nazi war crimes, particularly torture, violated
Norways prohibition against retrospective criminalization contained in Article
97 of the Norwegian Constitution. The Court based its decision in part on the
ground that his actions were already unlawful as violations of the Martens
Clause.100 Citing this measure, it noted:
Casseses commentary notes: On the face of it, the Courts decision equated the
laws of humanity and the dictates of public conscience with international
legal standards.102
This expansive interpretation receives additional support from more recent
war crimes jurisprudence including Kononov v Latvia 2011.103 This court, whose
decision cannot be explained away in terms of the immediate postwar context,
recognized that the Clause articulates principles of international law under
which considerations of humanity can, by themselves, directly exert independent
legal force to govern state conduct. This applies even in cases where no relevant
doctrinal rule has been expressly provided.104 On this interpretation, the Clause
must be recognized as a source of substantive and directly applicable humanitarian principles, including those pertinent to acts of genocide. This interpretation treats principles of humanity as independently existing general norms
capable of supplementing gaps and deficiencies in more specific and detailed
treaty measures.105
Arguably, this expansive approach also provides the most plausible of the
relevant sections of the ICJs Advisory Opinion.106 Here, the court had to
respond to the submissions made on behalf of Australia that: the use or
threat of nuclear weapons would now be contrary to fundamental principles
of humanity, and hence, contrary to customary international law. The court
listed two of three cardinal principles contained in the texts constituting the fabric of humanitarian law: the protection of the civilian population and the
prohibition of unnecessary suffering. It then cited the Martens Clause as the
100
101
102
103
104
105
106
Annual Digest and Report of Cases of International Public Law Year 1946 at 263.
ibid.
Cassese (n 1) at 203this writer rejects the validity of this aspect of the case however.
Kononov v Latvia App no 36376/04 (ECtHR, 17 May 2010) 5http://www.unhcr.org/
refworld/docid/4bf65e0b2.html4 (accessed 22 August 2011). See also Kononov v
Latvia App No 36376/04 (ECtHR, 24 July 2008) 5http://www.coe.int4. (accessed 1
March 2012) See G Pinzauti, The European Court of Human Rights Incidental
Application of International Criminal Law and Humanitarian Law: A Critical
Discussion of Kononov v. Latvia (2008) 6 J Int Criminal Justice 1043.
See Krupp 622.
Kimminich (n 1) 81; Roberts and Guellf (n 1) 9.
Advisory Opinion paras 78 and 84.
In other words, the criminal character of the acts dealt with in the present
case as well as the degree of punishment are already laid down in
International Law in the rules relating to the laws and customs of war.
These rules are valid for Norway as a belligerent country.101
427
third. Clearly, this decision placed each of the three established principles on a
par as substantive and directly applicable legal norms of international law:107
Judge Shahabuddeen endorsed the expansive interpretation of the Clause as a

directly applicable general principle, containing variable legal implications in
different contexts:
In effect, the Martens Clause provided authority for treating the principles of humanity and the dictates of public conscience as principles of
international law, leaving the precise content of the standard implied by
these principles of international law to be ascertained in the light of
changing conditions, inclusive of changes in the means and methods of
warfare and the outlook and tolerance levels of the international community. The principles would remain constant, but their practical effect
would vary from time to time: they could justify a method of warfare in
one age and prohibit it in another.109
The most recent judicial interpretation of the Advisory Opinion in Kononov v
Latvia, supports its relevance as an authority for the expansive interpretation of
the Clause relevant even to individual responsibilities for war criminality:
Relying expressly on the Martens clause, the ICJ noted that the
Hague and Geneva Conventions had become, intransgressible
principles . . . . . . Those principles, including the Martens clause, constituted legal norms against which conduct in the context of war was to
be measured by courts.110
The court then used this expansive interpretation in justifying its decision that,
by 1944, acts of ill treatment of civilians, including possible partisans, had
107
108
109
110
ibid 78.
ibid.
ibid 406
At para 215.
The Court would likewise refer, in relation to these principles, to the

Martens Clause . . . which has proved to be an effective means of addressing the rapid evolution of military technology. . . . In conformity with the
aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate
effect on combatants and civilians or because of the unnecessary suffering
caused to combatants, that is to say, a harm greater than that unavoidable
to achieve legitimate military objectives. If an envisaged use of weapons
would not meet the requirements of humanitarian law, a threat to engage
in such use would also be contrary to that law.108
428
Michael Salter
already become crimes under customary international law for which there was
individual criminal responsibility. Such liability existed independently from
more specific provisions contained in the 1945 Nuremberg Charter and the
Geneva Conventions of 1949, whose imposition would raise questions of retrospective criminalization contrary to Article 7 of the European Convention of
Human Rights. Having reviewed the various special protection measures for
women within international humanitarian law, it held that:
Additional, if more contestable, case law support can be found in Trial

Chamber I of the ICTY in the Martic decision, handed down in 1996.112
Martic had ordered the shelling of Zagreb in 1995 in which many civilians
were killed. Art. 3 of the ICTY Statute did not cover the accusation wholly.
In response, the court held that: the general principle limiting the means and
methods of warfare also derive from the Martens clause.113 Here, the Clause
was deployed to protect civilians by holding that their shelling constituted an
international crime, and that this measure legally regulated: the means and
methods of warfare even during internal armed conflicts unregulated by the
Hague Regulations.114 This case implies that, as a residual measure, the
Clause is applicable directly to, for instance, atrocities not covered by more
specific Treaty-based provisions. It constitutes a general principle operating as
an independent source of the laws of war, international humanitarian law, and
international human rights law.115
Even if we disregard the clear implications of the cases cited above, there are
other compelling analytical arguments in favour of this expansive interpretation.
First, it is the only interpretation that makes sense of why the Clause was originally perceived to be necessary. In other words, only a broad interpretation is
111
112
113
114
115
Para 218.
Martic (Rule 61 of the ICTYs Rules of Procedure and Evidence) ICTY-95-11-PT.
ibid 5.
The Trial Chamber added: This clause has been incorporated into basic humanitarian
instruments. . . Moreover, these norms also emanate from elementary considerations
of humanity which constitute the foundations of the entire body of international humanitarian law applicable to all armed conflict. ibid para 13.
Munch, Die Martenssche Klausel und die Grundlagen des Volkerrechts (1976) 36
Zeitechrift fur auslandisches offentliches Recht und Volkerrecht 34771, 365, 368. See
also Kononov v Latvia (2011) para 207, noting that the Clause: provided a residual
protection to inhabitants and belligerents for cases not covered by the specific provisions of the Hague Convention and Regulations 1907. Responsibility therein was on
states, which had to issue consistent instructions to their armed forces and pay compensation if their armed forces violated those rules.
The Court considers these expressions of special protection, understood

in conjunction with the protection of the Martens Clause (paragraphs
86-87 and 215 above), sufficient to find that there was a plausible legal
basis for convicting the applicant of a separate war crime as regards the
burning to death of Mrs Krupniks.111
429
[L]eaving the remainder to the governing effect of that sovereign clause

which does really in a few words state the whole animating and motivating principle of the law of war, and indeed of all law, because the object of
all law is to secure as far as possible in the mutual relations of the human
beings concerned the rule of law and of justice and of humanity.120
On this broader, purposive interpretation, the basic function of the Clause is to
put beyond challenge the existence of residual principles of international law
governing the conduct of military and state officials by reference to the principles of humanity.
As well as being consistent with the underlying purpose of this measure as
expressed in its legislative origins, the expansive interpretation is arguably supported by a close, even literal, construction of the wording of the Clause itself.
For instance, it makes optimal sense of the proposition that that civilians and
116
117
118
119
120
Beernaert made his speech on 6 June 1899, in the Sixth Meeting of the Second
Sub-Commission. His speech was reproduced in fullsee Conference
Internationale de la Paix, La Haye 18 Mai-29 Juillet 1899, Troisieme Partie (1899)
11113.
M Howard, G J Andreopoulos and M R Shulman, The Laws of War, Constraints on
Warfare in the Western World (Yale 1994) 122.
Krupp 622.
The Proceedings of the Hague Peace Conferences, The Conference of 1899 (1920) 54
and 419. Dissenting Opinion of Judge Shahabuddeen, ICJ Advisory Opinion, at 21:
5http://www.fas.org/nuke/control/icj/text/iunan_ijudgment_19960708_Dissenting_
Shahabuddeen.htm4 (accessed 1 March 2012).
Foreword by Lord Wright to the last volume of the Law Reports of Trials of War
Criminals Vol 15 at xiii.
fully consistent with the legislative history of the Clause. This argument was
endorsed by Judge Shahabuddeens contribution to the ICJs Advisory Opinion.
In support of this broader contention, he notes that during The Hague Peace
Conference of 1899 the delegate for Belgium, Beernaert, objected to certain
draft provisions being included in the final Convention.116 It was only when
the declaration of Professor Martens was adopted without dissent by the
Conference, that this delegate became able to vote in favour of the disputed
provisions.117 Delegates concluded that the introduction of the Martens Clause
had broken an early diplomatic impasse by providing additional substantive legal
protections for civilians by appropriately controlling military behaviour.118
Smaller states, such as Belgium, had been holding out for this in the face of
self-interested opposition from the larger powers.119
In addition, only an expansive interpretation makes sense of a number of
postwar judgements within postwar Nazi war crimes trials recognizing the
Clauses direct and immediately governing effect. After reviewing a range of
such decisions, Lord Wright described this measure as providing a keynote to,
and underlying legal foundation for, the more detailed Hague Regulations specifying a range of war crimes:
430
Michael Salter
121
122
123
ibid 408.
Sir G Fitzmaurice, The Law and Procedure of the International Court of Justice (1986)
Vol 1 at 17 n 4 at 4.
Decision from 26th October 2004 2 BvR 955/00.
combatants remain under the protection and authority of these principles. The
inclusion of the word remain would have been inappropriate unless these principles were understood as directly exerting normative force to control state
conduct in the absence of more detailed provisions. Clearly, the word remain
(as opposed to may if X and Y preconditions are considered to be fully met) is
unconditional. In addition, this expression suggests that such protection of civilians pre-dated the codification and consistent re-enactment of the Clause
throughout the 20th century. In turn, this suggests that its standards may have
already possessed a status as customary law.121 Accepting that the Clause contains an independently existing legal norm of conduct protecting civilians, its
wording still does not clarify whether, and if so in exactly what circumstances
and to what extent, humanitarian considerations directly give rise in themselves
to specific and enforceable legal obligations relevant to atrocities as one expects
of more detailed legal rules.122 We would suggest that the best interpretation of
the Advisory Opinion, including the dissenting opinions, is that the Martens
Clause has now been placed on a level with other broad general principles of
humanitarian law. These stand behind and bolster specific rules where these
exist, encourage their expansive reinterpretation to realize humanitarian outcomes, and become directly applicable where such applicable rules do not yet
exist.
Our contention makes best sense of the majority of the post-war case law in
which the Clause has recently been cited. In some cases, these references can,
perhaps, be explained as judicial efforts to bolster a liberal interpretation of
other international rules of humanitarian law. However, in many others, as we
have shown, it has been deployed to support the argument that certain inhumane acts post-1899 violated the international law norms already expressed by
the Clause to the point of countering arguments concerning retrospective criminalization. Arguably, this applies to the majority of the Nuremberg jurisprudence, particularly with respect to the formalization of crimes against humanity
only after the war was concluded. Furthermore, we note that the Clause has its
origins in an international treaty, which was later re-affirmed and developed in a
variety of international conventions and treaties spanning the 20th century that
go beyond Nazi war crimes trials.
In 2004, our view received further support from the Decision of the German
Bundesverfassungsgericht concerning the compatibility with international law of
enforced dispossession that took place in 19456 within the Soviet zone of
Germany.123 This court held that the humanitarian core of the Hague
Convention derives from the principles of humanity contained in the Clause.
Hence, it is possible that, although contemporary Germany had no liability for
431
124
125
126
ibid para 104 ff.

Cassese (n 1) 206.
In 1946, the totality of the Hague Regulations, including the Clause, were expressly
recognised as declaratory of customary international law by the IMT. Ticehurst (n 1)
1267. It is difficult to imagine any state or court now repudiating its customary law
status, particularly following the Advisory Opinion para 84.
the actions of the Soviet occupiers, these nevertheless violated fundamental

rights contained in pre-existing international law.124
Cassese, in his defence of the interpretative aide approach, has made perhaps
the strongest arguments against an expansive interpretation of the type we are
promoting. He argues that many cases that appear to endorse the Clause as an
independent legal norm were in fact obiter dicta, and thereby lack force as
precedents. In addition, the consequences of the expansive interpretation of a
measure that is too indeterminate to operate as an independent norm, have yet
to be settled. Those who advance this interpretation have to explain how the
Clause has in fact become part of customary international law, and to assess the
implications of its allegedly customary nature, particularly its specifically legal
effects in terms of the obligations upon states that stem from the Clause. He
argues that this approach fails to answer the question of whether this measure
either establishes new sources of international law, or bring into being humanitarian standards of conduct? In the latter case, can these standards be identified
by states with sufficient determinacy, as is surely needed in the fields of international criminal law? If not, then perhaps they can only be elaborated after the
fact by courts of law, which is hardly satisfactory.125
With the exception of the point concerning customary law, which has now
been settled,126 there is undeniable force in this critique. However, arguably its
effect is to highlight the need for additional ad hoc and incremental clarifications. Both domestic and international legal systems manage to successfully
operate with broad and open-ended notions, such as reasonableness, justice,
fairness, honesty and good faith. This applies even within their criminal
codes where questions of doctrinal certainty are especially pressing and subject
to rigorous due process protections for defendants.
Casseses point concerning the source/norm distinction is not decisive.
Arguably the wording of the version of the Clause contained in Protocol I.
Article 1(2) is relevant here in that it refers to principles of international law
that are derived from established custom, from the principles of humanity and
from dictates of public conscience. This clearly suggests that irrespective of its
status as customary law, principles of humanity and public conscience have
now become expressly recognized as both sources and norms of international
law. Hence, it is problematic to set up a sharp dichotomy between judicial interpretations that treat the Clause as either a grounding source or as an independent norm because, in practice, the two ideas overlap, blurring any clear-cut
distinction. It is, for instance, futile to distinguish the clause as a historic source
for the Nuremberg offence of crimes against humanity from the fact that actions that fall within the scope of this offence were already effectively rendered
432
Michael Salter
127
128
129
J Paust, Threats to Accountability After Nuremberg: Crimes Against Humanity,

Leader Responsibility and National Fora (1995) 12 New York Law School Journal
of Human Rights 545 suggesting that the Chief US prosecutor relied upon the Clause.
See also TJ Farer, Restraining the Barbarians: Can International Criminal Law
Help? (2000) 22 Human Rights Quarterly 90117.
Including GA res 38/75 of 15 December 1983 which: Resolutely, unconditionally and
for all time condemns nuclear war as being contrary to human conscience and reason. . . See Advisory Opinion dissenting opinions of Judge Shahabuddeen 421.
E Kwakwa, The International Law of Armed Conflict: Personal and Material Fields of
Application (Kluwer Academic Publishers 1992) 36; J Pictet, Development and
Principles of International Humanitarian Law (Martinus Nijhoff 1985) 62.
unlawful by the Clause understood as a pre-existing norm.127 Whether treated as

a source or normor as a combination of the twothe crucial point is that,
during decisive episodes for the development of international humanitarian law,
judges have relied upon this measure as legal authorization for developing legal
doctrine consistent with the implications of the Clauses standards.
Furthermore, unless divorced from contexts of application, the Clauses wording is not entirely indeterminate, or, perhaps more precisely, its relative vagueness and ambiguity is already in the process of becoming resolved. For instance,
the ICJs Advisory Opinion includes judicial statements recognizing that this
principle can be specified. This is possible by taking into account authoritative
statements of, for example, the genocidal implications of the use of nuclear
weapons made by responsible international bodies, international treaties and
the UNGA resolutions relating to the unacceptable nature of the use of nuclear
weapons.128 When viewed in the specific contexts to which they have been
applied, other parts of the Clause are also reasonably determinate. For example,
it does clearly acknowledge that during armed conflict, civilians merit particular
legal protection, even those who take up arms against a foreign occupying
power, and must be treated according to humanitarian principles, which must
exclude acts of genocide. It is also clear that such principles of humanity, expressly mentioned in the Clause, require the prohibition of inhumane means and
methods of war that inflict physical harms that go beyond what is militarily
necessary, and impose an obligation that non-combatants be spared as far as
possible.129
At this level of specificity, the Clauses principle of humanity underpins the
detailed provisions of treaties such as the Hague Regulations of 1907. Hence,
many of the acts that today are classified as crimes against humanity, such as
the militarily unnecessary and systematic targeting of groups of civilians for
widespread harm, already fell within the scope of the original Clause, even
prior to its subsequent judicial progressive development.
433
6. The Martens Clause as a principle connecting abstract moral

values with the application of specific rules
130
131
132
Advisory Opinion 4067.

G Filibeck, Restoring a Just Order in Post-Conflict Situations in the Light of the
Social Teachings of the Catholic Church (1998) 322 Intl Rev Red Cross 5http://www.
icrc.org/eng/resources/documents/misc/57jp4n.htm4 (accessed 1 March 2012).
ibid. See also Meron (n 1) 245 regarding the infiltration of humanitarian morality into
positive laws of war by virtue of the Clause.
Insofar as we interpret the legal implications of acts of genocide through the lens
of the Martens Clause, it promotes the idea that the judicial interpretation and
applications of such measures must incorporate moral, ethical and humanitarian
considerations that have yet to inform either actual state practices, or express
agreements between states.
In effect, the Martens Clause has provided authority for judges to recognize
the principles of humanity and the dictates of public conscience as universal
principles of both morality and international law, whilst leaving the precise content of the legal standards implied by these principles to be determined in the
light of changing conditions. The latter have included changes in prevailing
norms and tolerance levels regarding the acceptable killing of civilians. If
this interpretation is correct, it would mean that even where judges gave a
consistent interpretation of the principles over time, their practical effect regarding the mass killings of groups of civilians could, for example, change from
one of lawful justification to criminal prohibition.130
The wording of this measure clearly implies that the state parties recognized
that some generally shared normative principles with legal implications potentially relevant to atrocities, lay outside the four corners of specific treaties.
Certainly, the wording of the Clause strongly articulates a humanitarian tendency within the law of war, a rhetorical aspect that partly explains its resonance
and normative force in both the formation and interpretation of international
laws relevant to acts of genocide. Irrespective of the subjective intentions of its
creator, the Clause has represented an effort, driven by growing moral and
humanitarian impulses, to ensure that there is a general legal principle capable,
in principle, of filling any arising legal vacuums in the law of war, including of
course the lack of international law provisions effectively criminalizing the specific nature of the various genocidal campaigns carried out during the first half of
the 20th century.
Arguably, it has operated historically as a translator mediating between abstract moral/religious principles of natural law that otherwise possess little or no
legal relevance, and for example specific attempts to criminalize aspects at least
of genocidal campaigns against minority groups.131 This may well have marked
the formal acceptance in treaty form by the international community that:
humanity was protected in different ways from different types of conduct
within both treaty law as well as customary law.132
434
Michael Salter
It is therefore important to recognize the existence of a moral code as an

element of the laws of armed conflict in addition to the positive legal
code. . . . The Martens Clause provides a link between positive norms of
international law relating to armed conflicts and natural law. . . . However,
the Martens Clause establishes an objective means of determining natural
law: the dictates of the public conscience. This makes the laws of armed
conflict much richer, and permits the participation of all States in its
development. The powerful military States have constantly opposed the
influence of natural law on the laws of armed conflict even though these
same States relied on natural law for the prosecutions at Nuremberg. The
ICJ in its Advisory Opinion . . . facilitated an important debate on this
significant and frequently overlooked clause of the laws of armed
conflict.135
This interpretation of the Clause recognizes that it integrates moral ideas into
positive treaty law. Subsequently, throughout the 20th century, particularly in
case law related to genocidal acts, it has provided a stimulus for judges to further
develop the meaning and effects of international law measures relevant to these
acts. These applications of law have been developed incrementally to more
closely approximate the practical implications of universal moral condemnation.
The operation of such judicial development has effectively lessened the gulf
133
134
135
Sarkin (n 1) 153.
Ticehurst (n 1) 132.
ibid 133.
On this interpretation, the Clause was neither sufficiently precise nor determinate to clearly authorize the direct and immediate judicial creation of a distinct and universally applicable offence of genocide purely on the grounds that
humanitarian principles and dictates of public conscience immediately require
this. This would have required a radical and quasi-legislative series of judicial
interpretations extending both its wording and implications as a freestanding
source of international criminal law operating independent from state practices.
On the other hand, during the ICJs Advisory Opinion, proponents of the
illegality of nuclear weapons emphasized the importance of how the Martens
Clause incorporated elements of natural law into the positive norms of international law. The goal was for the laws of armed conflict to provide a moral, as well
as a positive, legal code, an affirmation of aspects of natural law as well as
positivism.133 This, in turn, requires that international law should not reflect
the views, practices and interests of the powerful military States alone.134
With reference to the Clause, Ticehurst argues its provisions allow the interpretation of an inevitably flawed positive international law code, which lags
behind prevailing ethical, military and technological developments, to be
updated:
435
136
137
G Sperduti, Lezioni di diritto internazionale Giuffre` (Rome 1958) 6874.

Advisory Opinion 4067.
separating traditional legal impunities for the perpetrators of such acts and the
implications of any viable moral reaction.
One aspect of the Clause that has forced itself upon our analysis without being
expressly addressed as a topic on its own right is its regular function as a translator between the abstract morality of natural law and positive international law
doctrine. This function includes operating as a moral-rhetorical inspirational
source for international humanitarian law-making, embracing judicial as well
as treaty-based law reform.136 In cases where judges and law reform institutions
have embraced the Clause with respect to atrocities against civilians the general
tendency has been to incorporate moral, ethical and humanitarian considerations into their consideration. This applies even to such consideration that
have yet to inform either actual state practices, or express Treaty agreements
between states. In effect, and as demonstrated by many of the cases discussed in
the last section, the Martens Clause has provided authority for judges to recognize the principles of humanity and the dictates of public conscience as universal principles of both morality and international law. Such recognition has
generally left the precise doctrinal content of the legal standards implied by
these broad principles to be determined anew in the light of changing conditions
of application. The latter have included changes in prevailing norms and tolerance levels regarding the acceptable killing of civilians, including as collateral
damage. If this interpretation is correct, it would mean that even where judges
gave a consistent interpretation of the principles over time, their practical effect
regarding the mass killings of groups of civilians could, for example, change
from one of lawful justification to criminal prohibition.137 Given the ICJ
Advisory Opinion case on the possession and threatened use of nuclear weapons
was decided in 1996 on the basis of a 8/7 bare majority that such possession was
not in all circumstances unlawful, even in the light of the moral imperatives of
the Martens Clause, it is entirely foreseeable that a later decision would reverse
this finding on the grounds that their threatened use would always be unconscionable and inhumane, and that the rationale for the existing legal restrictions on biological and other weapons of mass destruction must also apply by
analogy to nuclear weapons of similar or greater destructive power.
The connection between positive law and morality suggested here is not fanciful. On the contrary, it is clear from the wording of this measure which that the
State Parties recognized that some generally shared moral principles with concrete legal implications potentially relevant to atrocities against civilians, lay
outside the four corners of the specific treaties that this measure sought to
creatively supplement. Certainly, the wording of the Clause strongly articulates
a humanitarian tendency within the law of war, a rhetorical aspect that partly
explains its resonance and normative force in both the formation and (re)interpretation of international laws relevant to genocidal and other atrocities.
436
Michael Salter
7. Conclusion
We have reviewed the nature and merits of each of the four main approaches to
the interpretation of the Martens Clause. We have argued that that the restrictive approach suffers major flaws stemming from both the original context of its
emergence and, of equal importance, the subsequent post-war application within
the Nuremberg jurisprudence in particular. Supporters of the restrictive view
rely upon an overly positivist stance towards international law with an inbuilt
prejudice against even treaty-based principles that fail to conform to its aversion
for morally loaded legal principles, particularly where these challenge fantasies
of international legal analysis as a form of science capable of yielding doctrinal
certainty and predictability akin to mathematics.
Compared with these restrictive approaches, the interpretative/judicial aide
approach represents a considerable advance in that it better encapsulates the
20th and 21st centuries case law. Indeed, it is possible to point to a number of
key decisions of humanitarian law that endorse and exemplify this approach
very closely, if not exactly. On the other hand, there are at least as many
other cases that cannot be explained by this approach, particularly where
judges have treated the Clause as a possessing an independent legal status as
a substantive legal norm in its own right. Indeed, and even as supporters of the
interpretative aide approach concede, there exist Nazi war crimes cases where
judges applied the Clause as a direct legal norm in a context where it had already
been held that no other legal norm was applicable to support a successful prosecution for the abuse of civilians by German military occupiers. Of course, it is
possible to engage in a circular argument that such decisions must have been
138
139
140
141
Cassese (n 131).
McCoubrey (n 132).
Sarkin (n 1) 151.
ibid. See also Meron (n 1) 239, 245.
By making reference to pre-juridical moral principles and to the sentiments of

humanity,138 the terminology of the Clause draws attention to the claimed
moral basis of evolving humanitarian obligations.139 As Sarkin notes in this
context: before 1899 issues of morality had not been translated in international
legal rules in the positivist tradition. This seems to have changed subsequently. . .140 Arguably, our review of the Nuremberg case law suggests that it
has operated historically as a translator mediating between abstract moral principles that might otherwise possess little or no legal relevance to judicial
decision-making, and for example specific attempts to criminalize aspects of
genocidal campaigns against minority groups. This may well have marked the
formal acceptance in treaty form by the international community that: humanity was protected in different ways from different types of conduct within both
treaty law as well as customary law.141
437
wrongly decided, but this approach is, of course, entirely question-begging and
lacks cogency. Furthermore, both the wording of the Clause and the historical
context that prompted its original creation give more reason to accept than to
reject the proposition that its elements are best considered as substantive and
free-standing legal norms.
To accept this more expansive view results not in the rejection of the judicial
aide reading in its entirety but rather its creative expansion. There is no reason
why both interpretations cannot co-exist providing neither is taken to an extreme on the basis of a dubious either/or logic. The precise weighting of these
two elements can, however, only be ascertained in the context of future judicial
applications. Furthermore, we have seen that even when treated as a judicial
aide, the Clause has been used as a general principle authorizing a quasilegislative mode of judicial interpretation, as a norm-creating principle to the
point where much of the case law support for the judicial aide approach can be
easily reinterpreted in favour of the independent norm position. Finally, this
study reviewed the natural law dimensions of the Clauses definition, interpretation and judicial applications, and concluded that it has come to operate as a
translator of moral imperatives into concrete legal outcomes, including in the
context of both institutional and judicial law reform. Whilst this aspect will of
course irritate positivistically minded international lawyers reliance upon a law
vs. morality dichotomy, this is no reason to reject this fourth interpretation. On
the other hand, such translation has, as one would expect, been undertaken in a
cautious and pragmatic manner, and there is no precedent or basis in the Clause
for a cavalier disregard of established legal doctrine because of a purely subjective judicial preferences for achieving what appears to be a just outcome to
any particular case. The Clause operates as a moral supplement for positive law,
not an excuse of moralistic lawlessness.

Potential of The Martens Clause

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Journal of Conflict & Security Law Oxford University Press 2012; all rights reserved.

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Reinterpreting Competing Interpretations of the Scope

1. Introduction: questions and issues

Professor of Law, Lancashire Law School, UCLan. Email: msalter1@aol.com

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Scope and Potential of the Martens Clause

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J Dingwall, Unlawful Confinement As a War Crime: The Jurisprudence of the

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Scope and Potential of the Martens Clause

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weapons,20 use of other weapons of mass destruction by state sponsored terrorist

Pustogarov (n 1) 130; Ticehurst (n 1) 125, 127.

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Scope and Potential of the Martens Clause

According to the view of the High Contracting Parties, these provisions,

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Scope and Potential of the Martens Clause

The US governments Memorandum of Reservation to the 1919 Commissions Report

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rules themselves (as opposed to the subjectivity of decision-makers), which

Advisory Opinion para 86.

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Scope and Potential of the Martens Clause

4. The Clause as an interpretative aide

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level: in case of doubt, rules of international humanitarian law should be construed

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This judgement is exceedingly interesting in at least two respects; first,

Scope and Potential of the Martens Clause

ibid paras 5256.

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corresponding customary rules) must be interpreted so as to construe as

customary formation of most rules of international humanitarian

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Scope and Potential of the Martens Clause

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practice is scant or inconsistent. The other element, in the form of opinio

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Scope and Potential of the Martens Clause

The terms of the Martens Clause themselves make it necessary to point to

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mayas illustrated by the Kupreskic decisionbe judicially interpreted and

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Scope and Potential of the Martens Clause

5. The Clause as an independent legal norm

In document CCW/GGE/XII/WG.1/WP.4 (7 November 2005), the Netherlands

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judicial resource that, instead of helping to resolve interpretative issues at

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A number of writers characterize this measure in terms that include or imply

Scope and Potential of the Martens Clause

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Scope and Potential of the Martens Clause

Reported in Nederlandse Jurisprudentie (1949) no 87, 1556 (English translation in

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Scope and Potential of the Martens Clause