CYIL vol. 14 (2023)

CYIL 14 ȍ2023Ȏ PROTECTION OF NUCLEAR POWER PLANTS IN INTERNATIONAL ARMED CONFLICT The provision reflects the gravity of a situation arising in case of damage to such facilities due to the possible release of dangerous, uncontrollable forces. For this reason, States concluding the API established a heightened level of protection for such works during armed conflict, which applies even if the object would otherwise qualify as a military objective and attack on it would be permissible. The introduction of Art 56 API must be, therefore, understood ‘as an essential part of the general attempt to restrict the extent of permissible collateral damage’. 28 The prohibition under Art 56 is objective, meaning that if the scope of its application is met, the party considering an attack on the NPP has no space for deliberation and cannot proceed with execution. 29 Despite that, the prohibition of an attack on NPPs is not absolute, as there are three eventualities that render the granted protection inapplicable. The first two concern the ambiguity of its scope, and the last one is an exception to the rule. 2.2.1 Application of Art 56(1) API The application of Art 56(1) is restricted by the condition prohibiting the attack on the NPP only if the attack ‘may cause the release of dangerous forces and consequent severe losses among the civilian population’ . Thus, if the attack is not likely to cause these consequences, Art 56(1) will not apply. There are, however, two issues with this condition further complicating its assessment. First, the modal verb ‘may’ in this case indicates that Art 56(1) will be violated not only if the attack causes the release of dangerous forces and consequent losses among the civilian population but also if there is a risk of such consequences at the moment of the attack. 30 However, such a determination would require a retrospective assessment. 31 This is further complicated by the fact that the consequences of irradiation might not manifest many years after exposure. 32 Second, there is a difficulty with the quantification of ‘severe losses’. The Commentary to the API submits that the word ‘severe’ is equivalent to ‘important’ or ‘heavy’, and its interpretation is a ‘ matter of common sense and it must be applied in good faith on the basis of objective elements such as the proximity of inhabited areas, the density of population, the lie of the land etc.’ 33 However, such determination is not as clear as submitted. Since there is no internationally agreed standard to determine when civilian casualties become severe, the views of the party attacking and party defending the NPP are going to be very different. 34 What is, however, clear is that the civilian losses cannot be balanced against the military value 28 OETER, S., ‘Methods of Combat’ in FLECK, D. (ed), The Handbook of International Humanitarian Law (4th edn, OUP 2021) 228. 29 Australia, The Manual of the Law of Armed Conflict , Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, para 9.36. 30 Morgandi and Betin (n 3). 31 Ibid. 32 RAMBERG, B., ‘Attacks on Nuclear Reactors: The Implications of Israel’s Strike on Osiraq’ (1982) 97 Political Science Q 653, 664. 33 SANDOZ, Y., SWINARSKI, CH. and ZIMMERMANN, B., (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 , (Martinus Nijhoff Publishers 1987) (‘Commentary’) para 2154. 34 CARNAHAN, B. M., ‘Protecting Nuclear Facilities from Military Attack: Prospects after the Gulf War’ (1992) 86 AJIL 524, 533; See also Ramberg (n 32) 664.

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