At its most restricted, the Clause serves as a reminder that customary international law continues to apply after the adoption of a treaty norm. It is therefore subject to a variety of interpretations, both narrow and expansive. The problem faced by humanitarian lawyers is that there is no accepted interpretation of the Martens Clause. Although the clause was originally formulated to resolve this particular dispute, it has subsequently reappeared in various but similar versions in later treaties regulating armed conflicts. Large military powers argued that they should be treated as francs-tireurs and subject to execution, while smaller states contended that they should be treated as lawful combatants. Martens introduced the declaration after delegates at the Peace Conference failed to agree on the issue of the status of civilians who took up arms against an occupying force. The Clause was based upon and took its name from a declaration read by Professor von Martens, the Russian delegate at the Hague Peace Conferences 1899. ![]() " Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. ![]() The Martens Clause has formed a part of the laws of armed conflict since its first appearance in the preamble to the 1899 Hague Convention (II) with respect to the laws and customs of war on land: ![]() Rupert Ticehurst BA LLM is Lecturer in Law, King's College School of Law, London
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