The Martens clause aims to offer some protection to individuals caught up in

armed conflict even when there is no specific applicable rule of international

humanitarian law.
The Martens clause, as set out in 1977 Additional Protocol II, recalls that
in cases not covered by the law in force, the human person remains under the
protection of the principles of humanity and the dictates of the public conscience.
The clause was introduced in the preamble to 1899 Hague Convention II on the
Laws and Customs of War on Land, taking its name from a statement by Fyodor
Fyodorovich Martens, the Russian delegate at the Hague Peace Conferences
of 1899. The original text read as follows:
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.
In paragraph 78 of its 1996 Advisory Opinion on the Legality of the Threat or Use
of Nuclear Weapons, the International Court of Justice claimed that the Martens
clause has proved to be an effective means of addressing the rapid evolution of
military technology.

It did not, however, offer any evidence in support of this assertion, and its
practical application is disputed.

THE CURRENT SIGNIFICANCE AND IMPORTANCE OF THE CLAUSE

As originally enunciated, Martens Clause was clearly a product of its immediate
context; a diplomatic tool to breach an impasse that had arisen during the Hague
Conference in 1899. Martens primarily wished that negotiations were not
deadlocked over questions of partisan or resistance warfare. The Clause
safeguards customary law and supports the arguments that what is not
prohibited by treaty may not necessarily lawful. It applies to all kinds of
international law, not just only to belligerent occupation. It argues for
interpreting international humanitarian law, in case of doubt, consistently with
the principles of humanity and the dictates of public conscience. As a customary
norm whose applicability to the use of certain types of weapons, the prohibition
of unnecessary suffering, and other fundamental principles of international
humanitarian law has been recognized by the International Court of Justice, the
Martens Clause should be taken into consideration in evaluating the legality of
weapons and methods of war. In appropriate circumstances, it provides an
additional argument against a finding of non-liquet. It reinforces a trend, which is
already strong in international institutions or tribunals, towards basing the
existence of customary law primarily on opinio juris (principles of humanity and
dictates of public conscience) rather than actual battlefield practice. It also
reinforces the homocentric focus of international humanitarian law