The principle of proportionality

The so-called ‘principle of humanity’ The present book is supposedly dedicated to the ‘principle of humanity’ in international humanitarian law (IHL). This raises a preliminary question: is there really such a ‘principle’? In theory, the answer is patently affirmative, inasmuch as the ‘principle of humanity’ can be traced back to the Martens Clause (named after F. de Martens, a leading international lawyer who served as a Russian delegate to both Hague Peace Conferences of 1899/1907). A ‘modern version of that clause’ – in the words of the International Court of Justice – is to be found in Article 1(2) of 1977 Additional Protocol I to the Geneva Conventions, which sets forth: In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience. I do not contest the Martens Clause. The Court said about the Clause that its ‘continuing existence and applicability is not to be doubted’. Indeed, the Clause is reiterated in the Preamble to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to Have Indiscriminate Effects. The Clause has also been relied upon (on more than one occasion) by the International Criminal Tribunal for the Former Yugoslavia (ICTY). In part, the Martens Clause simply restates the obvious default rule: in the absence of a treaty norm (as well as in its place, where a treaty is denounced or is no longer in force), customary international law will apply. But the Martens Clause goes beyond this self-evident truth by adding a reference to the ‘principles of humanity’. It is by no means clear what value is added to the default formula by an allusion to such principles. As a matter of record, there is no empirical evidence in the practice of states that ‘principles of humanity’ have ever been relied upon independently of the ordinary application of customary international law.