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104 5 THE 1899 MARTENS CLAUSE AND THE 1949 IV GENEVA CONVENTION Honor is a moral and social quality. The right to respect for his honor is a right invested in man because he is endowed with a reason and a conscience. —Oscar Uhler and Henri Coursier, Commentary on the IV Geneva Convention Although the particular purpose of the 1949 Geneva Convention was to rectify, in light of the past world wars, the neglect of the situation and status of the civilian in the laws of war, perhaps its avowed model, General Orders 100, was the wrong place to start. Only after the express horrors of World War II did the international community willingly consider definite provisions for the protection of civilians. Recollect that, although civilian entered into common parlance (as a nonmilitary man or official) in the nineteenth century, it is not until the 1949 IV Geneva Convention that the category civilian is first formally introduced. Until this juncture the formal laws of war, primarily the 1899, 1907, and 1929 Hague conventions, said very little about the definition, much less protection, of the civilianbecausetheprotectionsandstandardsof civilizationweresaidtobesufficient— at least for wars conducted by the standardized armies among European states.1 The closest to codification these particular protections of civilization ever came was in the Martens clause. Should the formal laws of war prove incomplete , the authors of the 1899 Convention held that the expansive protections of the Martens clause would serve. Written by Frederic de Martens, an influential Russian lawyer and diplomat and a delegate to The Hague, the Martens clause conjures its “ancient antecedents in natural law and chivalry.”2 In its original formulation , the Martens clause held: 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 1899 MARTENS CLAUSE AND 1949 IV GENEVA CONVENTION 105 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.3 The purpose of the 1899 Hague Conference, at which Martens introduced his clause, was to develop and codify to any extent possible the obligations of custom and law incumbent on civilized nations in times of war and, in particular , to limit the use and development of certain weapons of war. Significantly, it was the first conference not immediately proceeded by a war, and perhaps more significantly today, it remains one of the only conferences not immediately provoked by war.4 Nevertheless, the failure to observe the Geneva Convention of 1864 during the Franco-Prussian War of the 1870s and the conduct of the Crimean War deeply disturbed prominent lawyers of the time. “A savagery unworthy of civilized nations” characterized the wars, betraying the hope that “undoubtedly civilized European nations” would conform as a matter of course with the laws of war.5 With the memories of these wars lingering, the Russian czar convened the 1899 Hague Conference to “humanize war, by which we mean that it must be regularized.”6 The significance of the regularization of war was twofold. First, wars must be made regular; that is, they must unfold as a predictable sequence of events, conforming to a particular pattern as practiced by professionals. Second, wars must be regulated. This required, much as the duels of old did,7 precise standards of exchange and a clear choreography of engagement. If, as Maury D. Feld writes in regard to the seventeenth and eighteenth centuries, “the emergence of armed forces into their modern professionalized, disciplined form had the effect of transforming violence into a mode of order,” then the atrocities of the past wars were catastrophic because they exposed the fragility of that order and the failure of discipline.8 As was expressed by the delegates in attendance in 1899, warfare worthy of civilized nations was fighting governed and moderated by appropriate rules of engagement—rules that by the late nineteenth century included “the distinction between members of armed forces and civilians.”9 Gathered at the 1899 Conference, these men shared a considerable faith in the strength of the Martens clause. As one delegate vividly expressed it, warfare would hitherto be restricted“by the laws of the universal conscience, and no general would dare violate them for he would thereby place himself under the ban of civilized nations.”10 Furthermore,as another delegate proclaimed...

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