CYIL vol. 14 (2023)

JAN MAIS CYIL 14 (2023) required for qualifying the object as a military objective under Art 52 API. 49 It may be thus safely presumed that the mere fact that the electricity is supplied for military uses does not fulfil this condition. 50 Secondly, even if the first condition is met, the attack still needs to be ‘the only feasible way to terminate such support’. Although the assessment naturally needs to be taken with regard to the situation on the field, one suggested way how to avoid the attack could be to focus on the power lines through which the power plant directly supplies the military operations of the adversary. 51 Targeting the lines providing electricity from an NPP to the military would prevent the general outage of energy upon which many civilian households depend. The strike would require identification of the exact power lines through which ‘regular, significant and direct support to military operation’ is provided and limitation of the attack only to them. Such a step could also be mandated by the precautionary principle, which requires that ‘[w]hen a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects’. 52 On the other hand, with every attack on such infrastructure, there are inherent risks of severe impacts on the civilian population. 53 Should it, therefore, be executed, it must constitute only the very last measure that would avoid resorting to an attack on the NPP. The exception in Art 56(2)(b) API sets a high threshold for its activation and it is difficult to imagine in what scenario would its conditions be met in practice. This raises the question of whether the exception is, in fact, needed. In comparison, Additional Protocol II 54 in Art 15 also prohibits attacks on works and installations containing dangerous forces. However, as opposed to Art 56 API, it does not contain any similar exception, and the prohibition of attacks in non-international armed conflicts governed by it is absolute. 55 The existence of the exception in Art 56(2)(b) API thus opens the door for potential abuse by serving as an excuse for circumventing the protection of Art 56(1) API, therefore further diminishing the strength of the prohibition. 56 49 DIENELT, A., ‘How Are Nuclear Power Plants Protected by Law During War?’ ( Völkerrechtsblog , 7 March 2022) accessed 30 May 2023. 50 Commentary (n 33) para 2165. See also Germany, Humanitarian Law in Armed Conflicts – Manual , DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffnetenKonflikten – Handbuch , para 466. 51 Commentary (n 33) para 2166. 52 Art 57(3) API. 53 For analysis of this issue see, e.g., GIORGOU, E., and ZEITH, A., ‘When the lights go out: the protection of energy infrastructure in armed conflict’ ( Humanitarian Law & Policy Blog , 18 October 2022) accessed 30 May 2023. 54 Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of non-international armed conflicts (Protocol II), (Geneva, 12 Dec 1977) 1125 UNTS 609, entered into force 7 Dec 1978. 55 Naturally, the reason for this may be purely pragmatic. As NPPs during non-international armed conflict are, in general, initially under the control of the government forces, the introduction of the exception would benefit their non-state opponents. Yet, the sole will to abandon the exception in this case serves as clear evidence that its inclusion is not indispensable. 56 Ramberg (n 32) 664–665.

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