CYIL vol. 14 (2023)

CYIL 14 ȍ2023Ȏ PROTECTION OF NUCLEAR POWER PLANTS IN INTERNATIONAL ARMED CONFLICT Introduction The Russian aggression against Ukraine, particularly the military operations at the occupied Zaporizhzhia nuclear power plant, has caused an ongoing nuclear safety crisis. For the first time in history, a party to a conflict has ventured to wage a direct attack against a nuclear power plant (‘NPP’) – a scenario until Russian shelling and subsequent capture of Zaporizhzhia inconceivable. Due to the persisting gravity of the issue, the UN Security Council convened four dedicated meetings. 1 At the most recent one, in May 2023, the Director General of the International Atomic Energy Agency (‘IAEA’) stressed that the nuclear safety and security situation at the Zaporizhzhia NPP ‘continues to be extremely fragile and dangerous’, and military activities in the region continue and ‘may well increase very considerably in the near future’. 2 Besides coming to the attention of the international community, the military operations at the largest European NPP and its vicinity have also reignited discussions about the adequacy of the current international humanitarian law (‘IHL’) regime protecting these hazardous sites in times of armed conflict. Up to now somewhat dormant special provisions addressing the protection of NPP have, however, proved to be in some aspects rather ambiguous and provide a number of unanswered questions. One such key issue is the lack of clarity as to what military operations might be legal. 3 The article follows up on this with the aim of answering a somewhat heretical question: under what circumstances, if any, might be a resort to an attack on an NPP in conformity with the IHL? To find the answer, the article will first provide a general context of the present situation in Ukraine that will help in understanding of the arising perils of NPPs caught in the middle of an armed conflict and also serve as a frame of reference for the following study. In the second part, the legal regime governing the protection of NPPs and military objectives in their vicinity will be analysed in order to identify shortcomings that could result from inadequate or unclear regulation. The scrutinized legal framework will be the one of international armed conflict where, as in the Russia-Ukraine war, both belligerent parties ratified the Additional Protocol I 4 (‘API’). The third part will analyse whether misusing the NPP for military purposes, especially by establishing a military base in the complex, renders the special protection inapplicable. In conclusion, the author argues that the regime protecting the NPP aims to prohibit any attack on the NPP, even though the cumbersomeness of the legal regime presents an opportunity for its abuse. 1 See UNSC Verbatim Record (30 May 2023) UN Doc S/PV.9334; UNSC Verbatim Record (11 August 2022) UN Doc S/PV.9109; UNSC Verbatim Record (23 August 2022) UN Doc S/PV.9114; UNSC Verbatim Record (6 September 2022) UN Doc S/PV.9124. Due to the political sensitivity of the issue, all these meetings were convened under the general agenda ‘Threats to international peace and security’. Since the article was written in May 2023, it reflects only developments up until 31 May 2023. 2 See IAEA ‘IAEA Director General Statement to United Nations Security Council’ (30 May 2023) Press Release. 3 See MORGANDI, T. and BETIN, B., ‘Legal Implications of the Military Operations at the Chernobyl and Zaporizhzhya Nuclear Power Plants’ ( EJIL:Talk! , 15 April 2022) accessed 30 May 2023. 4 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I) (Geneva, 12 Dec 1977) 1125 UNTS 3, entered into force 7 Dec 1978.

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