422
of international law. So humanity is not only a domestic concern but also an international one. National courts, just like international tribunals, arbitrators and rapporteurs, have often referred to the principle of humanity and they have tried to give
it a precise meaning. The principle of humanity, also commonly known as ‘laws of
humanity’, ‘elementary considerations of humanity’ or ‘considerations of humanity’, has been applied mainly to obligations of States
1
and initially referred almost
exclusively to the field of international humanitarian law and human rights law.
Indeed, international humanitarian law and human rights law are two bodies of
international law that are closely related to humanity. In particular, their main concern is respect and protection of human dignity, which is one of the essential minimum standards of humanity.
2
Previously, the principle of humanity had been inserted into the Lieber Code during the nineteenth century, the Saint Petersburg Declaration of 1868 through the
expression ‘requirements of humanity’,
3
among the seven fundamental principles of
the International Red Cross in terms of “prevention and alleviation of human suffering wherever it is in order to protect life and health and ensure respect for human
beings”,
4
in the Conventions of international humanitarian law of 1899 and 1907
through the famous Martens Clause,
5
in the common article 3, articles 12(1)/12(1)/
13/5 and 27 and denunciations clauses to the 1949 Geneva Conventions,
6
in articles 1
1 See Meron (2006).
2 ICTY (Appeal Chamber), Prosecutor v. Zejnil Delalic et al (“Celebici case”), Judgment, 20
February 2001, para. 149.
3 Preamble to the St Petersburg Declaration, 1868, para. 1.
4 With reference to the Fundamental Principles of the International Red Cross and Red Crescent
Movement see the Handbook of the International Red Cross and Red Crescent Movement, fourteenth edition, ICRC/International Federation of Red Cross and Red Crescent Societies, Geneva,
2008.
5 The clause was proposed by Fyodor Fyodorovich Martens, a Russian lawyer and member of the
Russian delegation to the 1899 International Peace Conference. As formulated in 1899, the Martens
Clause provides that: “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 is therefore a specific
application of the broader principle of humanity and it has been incorporated in one form or
another into a series of major treaties on humanitarian law. It is today considered applicable to the
whole of humanitarian law although originally the Martens Clause was devised to cope with disagreements among the parties to the Hague Peace Conferences regarding the status of resistance
movements in occupied territory. In particular, it was conceived as an instrument that acknowledges the limits of the provisions of humanitarian law and consequently seeks to ensure the protection of individuals without distinction in all cases even if not expressly covered by specific
provisions of law. The Martens Clause clearly indicates that, behind such specific rules as had
already been formulated, there lies a body of general principles capable of being applied to situations not already dealt with by a specific rule. Today, however, as we will see in this article, the
legal concept of humanity has gone far beyond the scope of international humanitarian law, also
concerning other areas of international law.
6 This was pointed out also by T. Meron who affirmed that “The Geneva Conventions employ a
version of the Martens Clause in their denunciation clauses (common Article 63/62/142/158) for a
different, but parallel, goal: to make clear that if a party denounces the Conventions, it will remain
F. Delfino
of international law. So humanity is not only a domestic concern but also an international one. National courts, just like international tribunals, arbitrators and rapporteurs, have often referred to the principle of humanity and they have tried to give
it a precise meaning. The principle of humanity, also commonly known as ‘laws of
humanity’, ‘elementary considerations of humanity’ or ‘considerations of humanity’, has been applied mainly to obligations of States
1
and initially referred almost
exclusively to the field of international humanitarian law and human rights law.
Indeed, international humanitarian law and human rights law are two bodies of
international law that are closely related to humanity. In particular, their main concern is respect and protection of human dignity, which is one of the essential minimum standards of humanity.
2
Previously, the principle of humanity had been inserted into the Lieber Code during the nineteenth century, the Saint Petersburg Declaration of 1868 through the
expression ‘requirements of humanity’,
3
among the seven fundamental principles of
the International Red Cross in terms of “prevention and alleviation of human suffering wherever it is in order to protect life and health and ensure respect for human
beings”,
4
in the Conventions of international humanitarian law of 1899 and 1907
through the famous Martens Clause,
5
in the common article 3, articles 12(1)/12(1)/
13/5 and 27 and denunciations clauses to the 1949 Geneva Conventions,
6
in articles 1
1 See Meron (2006).
2 ICTY (Appeal Chamber), Prosecutor v. Zejnil Delalic et al (“Celebici case”), Judgment, 20
February 2001, para. 149.
3 Preamble to the St Petersburg Declaration, 1868, para. 1.
4 With reference to the Fundamental Principles of the International Red Cross and Red Crescent
Movement see the Handbook of the International Red Cross and Red Crescent Movement, fourteenth edition, ICRC/International Federation of Red Cross and Red Crescent Societies, Geneva,
2008.
5 The clause was proposed by Fyodor Fyodorovich Martens, a Russian lawyer and member of the
Russian delegation to the 1899 International Peace Conference. As formulated in 1899, the Martens
Clause provides that: “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 is therefore a specific
application of the broader principle of humanity and it has been incorporated in one form or
another into a series of major treaties on humanitarian law. It is today considered applicable to the
whole of humanitarian law although originally the Martens Clause was devised to cope with disagreements among the parties to the Hague Peace Conferences regarding the status of resistance
movements in occupied territory. In particular, it was conceived as an instrument that acknowledges the limits of the provisions of humanitarian law and consequently seeks to ensure the protection of individuals without distinction in all cases even if not expressly covered by specific
provisions of law. The Martens Clause clearly indicates that, behind such specific rules as had
already been formulated, there lies a body of general principles capable of being applied to situations not already dealt with by a specific rule. Today, however, as we will see in this article, the
legal concept of humanity has gone far beyond the scope of international humanitarian law, also
concerning other areas of international law.
6 This was pointed out also by T. Meron who affirmed that “The Geneva Conventions employ a
version of the Martens Clause in their denunciation clauses (common Article 63/62/142/158) for a
different, but parallel, goal: to make clear that if a party denounces the Conventions, it will remain
F. Delfino