Martens Clause

[13] The wording in both is identical but slightly modified from the version used in the Hague Convention of 1907:[14] Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscienceIn its commentary (Geneva 1987), the ICRC states that although the Martens Clause is considered to be part of customary international law,[15] the plenipotentiaries considered its inclusion appropriate because: First, despite the considerable increase in the number of subjects covered by the law of armed conflicts, and despite the detail of its codification, it is not possible for any codification to be complete at any given moment; thus the Martens clause prevents the assumption that anything which is not explicitly prohibited by the relevant treaties is therefore permitted.

At its most restricted, the Clause serves as a reminder that customary international law continues to apply after the adoption of a treaty norm.

[8] Ticehurst concludes that: ... By refusing to ratify treaties or to consent to the development of corresponding customary norms, the powerful military States can control the content of the laws of armed conflict.

... the Martens Clause establishes an objective means of determining natural law: the dictates of the public conscience.

The clause served rather as general statement for humanitarian principles as well as guideline to the understanding and interpretation of existing rules of international law.