CYIL vol. 14 (2023)

JAN MAIS CYIL 14 ȍ2023Ȏ protection provided by other relevant rules of IHL, such as the principles of precaution and proportionality. 19 2.1 Principle of distinction Before moving to Art 56 API, the first layer of protection is formed by the principle of distinction under Art 52 API, which provides that attacks must be limited strictly to military objectives. Objects constituting the legitimate military objectives are those ‘which by their nature, location, purpose or use make an effective contribution to military action.’ 20 In addition, their ‘total or partial destruction, capture or neutralization’ has to offer, at the time of the assessment, ‘a definite military advantage’. 21 Should the object not fulfil these criteria, it is a civilian object protected by the absolute prohibition of attack and can never be the target of military attack. 22 International Committee of the Red Cross (‘ICRC’) submits that NPPs are, as a rule, civilian objects and, thus, cannot be targeted. 23 Indeed, as the facility is normally dedicated to civilian purposes, it must be presumed to be a protected civilian object, even in case of doubt. 24 On the other hand, it can be imagined that produced electricity is supplied also for military uses or the NPP is even misused for other military efforts — for instance, as the later discussed military base in the Zaporizhzhia. However, any claim that the NPP is used as an ‘effective contribution to military action’ would have to be proven in each case beyond any doubt. Should it fail, the NPP will not qualify as a legitimate military objective and remains to be a civilian object that cannot be attacked regardless of the resulting military advantage. 25 2.2 Protection of works and installations containing dangerous forces In a scenario where the NPP would constitute a legitimate military objective, the special protection granted to ‘works and installations containing dangerous forces’ under Art 56 API comes into play. Until the Russian invasion of Ukraine, this rather side-lined provision has been invoked merely occasionally, with a debate centred primarily on the protection of dams. 26 This has, however, changed with the Zaporizhzhia crisis, as the provision became the centrepiece in the protection of NPP. The relevant part of Art 56(1) API provides that: Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations , shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. 27 19 Ibid. 20 Art 52(2) API. 21 Ibid. 22 Ibid; CROWE, J. and WESTON-SCHEUBER, K., Principles of International Humanitarian Law (E Elgar, 2013) 53–54. 23 ICRC, ‘How humanitarian law applies to armed conflict and nuclear power plants’ ( ICRC, 2 September 2022) accessed 30 May 2023. 24 Art 52(3) API. 25 Diplomatic Conference (n 18) Volume XV CDDH/215/Rev.1, 282 para 86. 26 See SCHMITT, M. N., ‘Attacking Dams – Part II: The 1977 Additional Protocols’ ( Articles of War , 2 February 2022) accessed 30 May 2023. 27 Art 56(1) API (emphasis added).

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