Dale Stephens


The Advisory Opinion of the International Court of Justice in the 1996

Nuclear Weapons Case assessed the legitimacy of the threat or use of nuclear

weapons in an armed conflict. This Article examines the Opinion's contribution to

a contemporary understanding of the law of armed conflict. It argues that the

Court has provided an added weighting for humanitarian standards when

assessing the legitimacy of military actions. This "weighting" significantly

modifies the legitimate application of military force, particularly under the

principle of proportionality. While the Advisory Opinion ostensibly gave formal

primacy to the law of armed conflict, the reasoning adopted by the Court will

enable the opposite to occur; namely, it will promote human rights in the

interpretation of the law of armed conflict. Additionally, the Court's formal

recognition of human rights standards in armed conflict has a significant impact

on rights enjoyed by a Government's own military members.