Human Rights and Armed Conflict-The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case

Abstract

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.