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:

“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.”

Twenty years ago, on 11 June 1977, the plenipotentiaries of over a hundred States and several national liberation movements signed the Final Act of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts. This Conference had been convened by the government of Switzerland, the depositary State of the Geneva Conventions. After four sessions held between 1973 and 1977, themselves preceded by several years of preparatory work, the Conference drew up two Protocols additional to the Geneva Conventions of 12 August 1949, relating to the protection of the victims of international armed conflicts (Protocol I) and of noninternational armed conflicts (Protocol II).

Young people are the focus of special interest in studies on the humanitarian, social and political situation throughout the world. As “victims”, their plight attracts particular attention on account of their vulnerability, which is recognized in all cultures everywhere—albeit with considerable variation in views as to the age of reaching adulthood. If they belong to “deviant” groups such as street children, criminals, children outside the school system or child soldiers, they are treated as victims, permanent outcasts or a threat, depending on where they are and what they do. Lastly, those who belong to a “controlled” group, in other words those enjoying a normal social and/or school life, are subject to demands which are all the greater given their elders' own disarray in face of the accelerated pace of change at the turn of the century, and the adults' desire to prepare the rising generation to cope with an uncertain future.

The International Criminal Tribunal for the former Yugoslavia (“the International Tribunal”) was established over four years ago in response to the mass killings, widespread and systematic rape and “ethnic cleansing” being practised in the former Yugoslavia on a scale and of a ferocity not seen on the European continent since the end of the Second World War. The United Nations Security Council considered that this situation constituted a threat to international peace and security. It therefore established the International Tribunal as a subsidiary judicial organ, in the belief that this would help halt and redress such violations.

Since ancient times, the use in war of poison and pathogenic agents has been considered a treacherous practice. It was condemned by international declarations and treaties, notably by the 1907 Hague Convention (IV) respecting the laws and customs of war on land. Efforts to strengthen this prohibition resulted in the conclusion, in 1925, of the Geneva Protocol which banned the use of asphyxiating, poisonous or other gases, usually referred to as chemical weapons, as well as the use of bacteriological methods of warfare. The latter are now understood to include not only bacteria, but also other biological agents, such as viruses or rickettsiae which were unknown at the time the Geneva Protocol was signed. (On 1 January 1997, 132 States were party to this Protocol.) However, the Geneva Protocol did not prohibit the development, production and stockpiling of chemical and biological weapons. Attempts to achieve a complete ban were made in the 1930s in the framework of the League of Nations, but with no success.

The world now has a population of 5 billion, as against 1 billion in 1863 when the Red Cross was founded and the codification of the law of armed conflicts was initiated. For almost a century, the Red Cross concerned itself successively with soldiers wounded in action, victims of naval warfare, prisoners of war and civilians abandoned in wartime to the arbitrariness of foreign rule.

The decision to devote an issue of the International Review of the Red Cross to a series of articles on the two ad hoc International Criminal Tribunals set up by the United Nations to prosecute persons responsible for serious violations of international humanitarian law in the former Yugoslavia and in Rwanda reflects the increasing importance of these courts both for the general public and for legal experts.

Deliberately induced disease or biological warfare is a source of increasing concern as we approach the twenty-first century, as its prevention is central to the security, health and well-being of the global community. In the simplest terms, biological warfare means placing the health of humans, animals and plants at risk from disease deliberately induced as a hostile act. Disease has caused more casualties in all wars than actual weapons of war and there is increasing — and justified — worldwide concern about new and emerging diseases. As the world population continues to increase, new areas of land are occupied and there is greater overcrowding in populated areas, with an ever-greater demand for both plants and animals as sources of food. This creates more opportunities for new or old diseases to spread among humans, animals and plants, with all the consequential socio-economic damage to the countries concerned.

The unprecedented tragedy that befell the ICRC in Chechnya has underscored the vital importance of security in ensuring the success of any humanitarian operation and has prompted the adoption of measures aimed at affording better protection for ICRC personnel.

There are some questions which one would prefer not to raise. The legality of the use of nuclear weapons in war is surely a case in point.

Countries at peace have a hard time understanding wars. That is why humanitarian organizations are so often asked to comment on and explain hostilities to the outside world. At a time when humanitarian operations are being carried out ever closer to the actual fighting, media coverage of the fighting—largely aimed at a far-away audience, at the West—is growing on television screens around the world. In order to stand out against the competition, to be visible to donors, to raise funds or to denounce atrocities, humanitarian organizations are increasingly joining the race for air time, and their survival may depend on how they place. Yet because they speak continually for and to the West and because they appear time and again on television, it is on the basis of this media image—which has the effect of underscoring their allegiance to the Western world—that the warring parties end up forming an opinion about these organizations' activities. The rejection being suffered ever more frequently by humanitarian organizations in the field is very likely strengthened, and sometimes even caused, by such jockeying for media exposure; for that exposure enhances the perception that they belong to an ideological camp whose political, economic and cultural interests are one of the issues at stake in today's major conflicts.

It is easy to heap scorn on the Advisory Opinion handed down by the International Court of Justice on 8 July 1996 on the legality of the threat or use of nuclear weapons. No great cerebral effort is required; one need only choose any of the numerous and often harsh criticisms to be found in the declarations and the separate or dissenting opinions that all fourteen judges present took care to formulate, whether they agreed with the whole of the decision or voted against any of its paragraphs.

The ancient dream of international criminal jurisdiction is gradually becoming a reality. Article 227 of the 1919 Treaty of Versailles provided that German Emperor Wilhelm II should be tried by an international court to answer charges of “flagrant offences against international morality and the sacred authority of treaties”. But since the Netherlands refused to give up the accused, the trial never took place, and Wilhelm II died in exile in Holland in 1941. Articles 228 and 229 of the Treaty providing for the prosecution of war criminals were applied in a disappointing way in the Leipzig trial. The Nuremberg and Tokyo trials after the Second World War undeniably represented progress towards the creation of a body with truly international criminal jurisdiction, but they were greatly influenced by their origins and in effect applied the law and justice of the victors rather than those of the universal community of States.