CYIL vol. 14 (2023)

JAN MAIS CYIL 14 (2023) party to a conflict is not free to proceed with the attack on an NPP (or military objective in its vicinity) as other protective rules of IHL also apply. This is envisaged by Art 56 itself when it emphasises that ‘[i]n all cases, the civilian population and individual civilians shall remain entitled to all the protection accorded them by international law’. 61 Two main principles play a key role in this regard, namely the principle of proportionality under Art 51 API, and the principle of precaution under Art 57 API. When assessing the legality of a decision to attack, an impact on the civilian population must be taken into account. The principle of proportionality prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that are excessive in relation to the concrete and direct anticipated military advantage. 62 As opposed to the objective standard under Art 56 API, the regime governing the principle of proportionality is a subjective one. In other words, in the case of fulfilment of conditions set in the Art 56(1) API the party has no space for deliberation, whereas, under the principle of proportionality, the party must actively assess whether the incidental civilian loss is expected to be excessive in relation to anticipated military advantage. This principle also includes secondary harm caused to civilians, such as the one caused by irradiation. The second key role plays the already mentioned principle of precaution, according to which constant care shall be taken in the conduct of military operations to spare the civilian population, civilians and civilian objects. 63 Principle of precaution is not only closely intertwined with considerations under Art 56, but it must also be assessed in cases where the special protection of Art 56 is lost or not activated. Thus, the party planning to attack NPP would need to adopt all practical precautions to prevent any release of radiation from it. 64 In practice, this would, for example, require using only weapons or means of combat that would not recklessly damage the whole facility but rather ones that could employ more limited, targeted strikes. Additional protection may be found also in other rules of IHL such as those protecting the environment during an armed conflict. Art 55(1) API requires parties to take care to protect the natural environment against widespread, long-term and severe damage, that the release of radiation could undoubtedly create, and also prohibits any methods and means of warfare which are intended or may be expected to cause such damage. The issue is also addressed by ICRC in its Guidelines on the Protection of the Natural Environment in Armed 61 Art 56(3) API. 62 Art 51(5)b) API; ICRC, ‘Rule 14. Proportionality in Attack’ ( International Humanitarian Law Databases ) accessed 30 May 2023; Crowe and Weston-Scheuber (n 22) 55. 63 Art 57 API. When facing a threat of an attack, the principle of precaution must be taken into account also by the defender. In this regard, it is suggested that the party responsible for the operation of the NPP may be obliged, as a preventive measure, to close the facility down. See Oeter (n 28) 232; Commentary (n 33) para 2176; Germany Manual (n 50) para 469. A similar approach was taken in the case of the Krško Power Plant in 1991 where the newly independent Slovenia, anticipating an attack from Yugoslavia, rather put the reactors to a cold shutdown. See HIBBS, M., ‘The narrow field of options for safely managing Ukraine’s Zaporizhzhia Nuclear Power Plant’ ( Bulletin of the Atomic Scientists , 10 March 2022) accessed 30 May 2023. Such an approach, however, has its deficiencies as the supply cut-off could potentially lead to civilian casualties, especially in winter months. When facing a possible attack, the commander defending the NPP will thus have to have to weigh the risks arising from the loss of electricity against the possible release of contamination. 64 Commentary (n 33) para 2170.

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