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JAN MAIS CYIL 14 ȍ2023Ȏ of the target. Following the objective character of Art 56(1) API, if severe losses would result from the attack, then the attack is forbidden. 35 The burden of proof regarding the absence of the risk and the assessment of the severity of losses lies on the attacking party. 36 However, the more the determination is left on the belligerents, the more leeway they have at their disposal. The risk connected with this condition had been acknowledged already at the time of adoption of the provision when Romania voted against its inclusion as it considered that its presence reduces the protection granted to works containing dangerous forces . 37 Without an objective test or standard, it can hardly be imagined that, in practice, the party assessing the possibility of attack would not interpret the ambiguity of rules to its benefit. 2.2.2 Protected nuclear works and installations The second ambiguity within the scope of Art 56 API is the restriction of its application to ‘nuclear electrical generating stations’. Referring solely to facilities producing electrical energy, the provision covers only part of the nuclear cycle. While it clearly includes NPP, it does not apply to nuclear research reactors, enrichment facilities, reprocessing facilities, or spent fuel storage facilities. 38 However, if targeted, all these objects could still cause substantial radioactive releases. The logic of Art 56 is thus inconsistent. It aims to protect from the release of dangerous forces contained in certain facilities, but it simultaneously restricts the protection only to three types of these facilities –– namely, dams, dykes and nuclear electrical generating stations. Yet, as demonstrated by the examples above, it is not hard to come up with other instances that could be equally dangerous. At the time of the drafting, the list had been proposed merely as illustrative, extending protection to all works and installations containing dangerous forces. However, it was only after restricting its application to the three provided instances that delegations were able to reach a generally acceptable solution. 39 Some delegations proposed to at least expand the list, but to no avail. 40 While ICRC recommends applying the protection of Art 56 also to other installations containing dangerous forces, this remains only an invitation. 41 In addition, the term ‘nuclear electrical generating stations’ alone requires some further thought. The adjective ‘generating’ suggests that in order to enjoy the protection of Art 56 API, the facility still needs to generate electricity. 42 Such an interpretation would however mean that the protection does not cover defunct NPPs such as Chornobyl. Taken to the 36 ZEITH, A. and GIORGOU, E., ‘Dangerous forces: the protection of nuclear power plants in armed conflict’ ( Humanitarian Law & Policy Blog , 18 October 2022) accessed 30 May 2023. 37 Diplomatic Conference (n 18) Volume XIV CDDH/III/SR.31, 305 para 40. 38 ELBARADEI, M., NWOGUGU, E. and RAMES, J., ‘International Law and Nuclear Energy: Overview of the Legal Framework’ (1995) 37[3] IAEA Bulletin 16, 20–21. 39 Diplomatic Conference (n 18) Volume XV CDDH/215/Rev.1, 282 para 85. 40 Commentary (n 33) paras 2149–2150. 41 ICRC, Rule 42. Works and Installations Containing Dangerous Forces (n 17). 42 Morgandi and Betin (n 3). 35 DUPUIS, M.P., HEYWOOD, J.Q. and SARKO, M.Y.F., ‘The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary Law and the 1977 Protocols Additional to the 1949 Geneva Conventions’ (1987) 2:2 Am U J Intl L & Pol’y 415, 468.

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