CYIL vol. 14 (2023)

CYIL 14 (2023) PROTECTION OF NUCLEAR POWER PLANTS IN INTERNATIONAL ARMED CONFLICT 2.3 Protection of military objectives in the vicinity of protected works When analysing the protection of NPP from attacks, an inherently connected issue is the legality of attacks on military objectives located in their vicinity. The protection of these objectives can be equally crucial as an attack on them can result in damage to the centrally protected work containing dangerous forces, risking their release from it as if this work was targeted directly. Indeed, Art 56(1) API reflects this concern and extends its protection also to these military objectives located in the vicinity of NPPs. The protection is subjected to the same conditions as NPP, as it also requires that potential attack ‘may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population’. 57 There are two scenarios of how the attack on a military objective in the vicinity of an NPP can lead to the release of dangerous forces. The first is simply based on the vicinity itself. The Commentary speaks about objectives that are ‘either incorporated in the installation or located in the immediate vicinity’. 58 When attacking objectives in such proximity to the protected site, there is always an increased danger of collateral damage affecting the site itself. This was clearly evidenced in the case of an attack on Zaporizhzhia. Although the Russian side may claim that it did not target the NPP, in the course of the attack on the training centre and administrative building directly attached to the area, the stray missiles landed within the complex itself. While in this case fortunately without consequences, it is not difficult to argue that such stray missiles could have hit unprotected infrastructure of cooling mechanisms that could have disrupted the operation of the reactors and led to the release of radiation. As established in Art 56(1), the mere possibility suffices. The second scenario concerns the military objectives ensuring the safe operation of the NPP. Of fundamental value is the protection of the infrastructure directly supplying water or electricity to the NPP that guarantees the running of the reactor’s cooling mechanisms. As established above, such an outage may lead to the same consequences as directly targeting the site itself. The issue here is how far can the requirement of ‘vicinity’ be extended. The supply lines can be targeted and interrupted at a greater distance and yet lead to the same disastrous outcome. Nonetheless, the word ‘vicinity’ cannot be stretched to such an extent as to incorporate also more distant electrical supply lines. The protection under Art 56(1) API thus cannot apply. Similarly, as with NPP, there is an exception to protection under Art 56(2) API. However, as opposed to NPP, the exemption is worded differently. The protection shall cease ‘if they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support’. 59 As the protection of military objectives in the vicinity may be of equal importance to the safety of centrally protected work, the lower standard for meeting the exception constitutes a loophole in the protection of NPPs themselves. 2.4 Other applicable rules of IHL When adopting the wording of the Art 56 API, the delegation of the Federal Republic of Germany expressed its discontent, calling the final version ‘an almost unworkable text’. 60 The above-discussed issues prove these concerns genuine. Still, even where Art 56 fails, the 57 Art 56(1) API. 58 Commentary (n 33) para 2155. 59 Art 56(2)(c) API. 60 Diplomatic Conference (n 18) Volume XV CDDH/III/SR.31, 306 para 43.

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