78 Ibid., at 290, para. 8. The meaning of this decision has not been lost on one modern defender of the ‘dualistic axiom’ – Robert Sloane, who claims that the axiom ‘can rightly be hailed as one of the paramount achievements of the postwar law of war’. His assessment of the International Court of Justice opinion, which he argues (without evidence) is a ‘holding that most regard as, at best, confused’, includes the following: ‘On either view, the ICJ's opinion has disquieting implications beyond the unique horror of nuclear weapons. There is no principled reason to limit its logic to particular weapons or methods of warfare. Chemical or biological weapons, too, would be justified to ensure a state's survival, as would torture, summary execution, terrorism, denial of quarter, and other in bello violations – provided only that the cost of military defeat in ad bellum terms reaches a sufficient level, that is, the destruction of a state or (perhaps) a cognate nonstate polity. A core purpose of the dualistic axiom is to avoid this kind of misguided logic. Taken to its extreme, it leads inexorably to the destruction of independent constraints on the use of force by polities. . . . Even apart from general philosophical objections, one obvious problem with this contention in the context of international law is that it cannot be limited in principle to the survival of “desirable” polities – say, to liberal democratic states. States like North Korea may equally invoke this sort of logic to justify IHL violations and disregard the dualistic axiom – as may nonstate collectives, such as al-Qaeda, that espouse some collective, sacred value higher than the individual’, R. D. Sloane, ‘The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War’, (2008) 34 Yale JIL 47, at 92, 112.
