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Martens, inimsusevastsed kuriteod ja kaasaegsed inim igused

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Abstract:

Friedrich Fromhold Martens has left a distinguished mark on international law. This paper deals with his contribution to a specific area of international law, namely modern humanitarian law. Martens can be considered as a one of the founders of this branch of law as we know it today. The innovation he made more than a century ago and that is known to the world as the Martens clause still maintains its value and standing, not only theoretically but also in practice. It is used in the modern adjudication of contemporary human rights cases on the domestic as well as on the international level. Although the principles of humanitarian law have been fixed and formally recognised by the vast majority of civilised nations for decades, in reality the law on paper is often forgotten and bluntly disregarded. This has been witnessed during the Second World War and its aftermath, as well during recent conflicts in the Balkans and the Caucasus. There is a general consensus that the guilty or defeated party should be responsible for violation of laws of war and humanitarian law, but this does not always apply in respect of the victors. This becomes particularly evident when the activities of a victorious power are subjected to judicial scrutiny. During the past few years, the European Court of Human Rights has dealt with several cases linked to crimes committed during the Second World War (Kononov v. Latvia; Kolk and Kislyiy v. Estonia; Papon v. France), popular uprisings in the former Socialist Block, the war in the Balkans (Bankovi and Others v. Belgium and Other Member States); and tens of Chechen cases against Russia). A common feature of these cases is the violation or infringement of internationally recognised humanitarian law. The position of the Court has been that Nuremberg and humanitarian law principles are equally applicable to both sides of a military conflict and that a formal nullum crimen sine lege, nulla poena sine lege principle cannot be dominant or take precedence over other generally recognised legal and humanitarian principles and considerations.

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