CYIL vol. 14 (2023)

CYIL 14 ȍ2023Ȏ PROTECTION OF NUCLEAR POWER PLANTS IN INTERNATIONAL ARMED CONFLICT Conflict, which links it with the protection of works and installations containing dangerous forces. 65 The general rules of IHL thus present a vital safety net which strives to overcome any shortcomings of Art 56 API as a party intending to launch an attack on the NPP would still need to, among others, cope with the principle of proportionality, precaution, or the protection of the environment. 3. Misusing the NPP as a ‘shield’ for military purposes The situation that has unfolded in Zaporizhzhia poses a unique challenge for IHL. The establishment of a military base and artillery post in the complex of the NPP (or its vicinity) makes it a strategically relevant object. What would be under ordinary circumstances considered a legitimate military target, meeting the principle of distinction, must now be reconciled with its connection to specially protected NPP under Art 56 API, which prohibits an attack despite being a military objective. The party establishing the military base thus exploits the hazardous nature of NPP and related extensive legal protection as sort of a ‘nuclear shield’, relying on the fact that the adversary will not risk any steps in retaliation. The following part analyses whether the legal protection provided to NPP applies to the same extent also in a situation like the one that unfolded in Zaporizhzhia or whether it constitutes sufficient factual divergence that would lead to a different legal assessment. 3.1 Application of Art 56 API to cases where NPP is used for military purposes Starting with the application of Art 56 to the present scenario, the attack on the military base would still constitute an attack on NPP, or at least on military objectives in its vicinity, and due to inherent risks, the attack could lead to the release of dangerous forces. Even if the reactors were put to cold shutdown and the NPP would not produce electricity, the facility still falls under ‘nuclear electricity generating stations’ and the prohibition of the attack under Art 56(1) API applies. 66 Turning to exceptions from Art 56, the present situation reveals the logical inconsistency of the legal protection. The exception for NPP in Art 56(2)(b) is not helpful as it presumes that the adversary would use the facility for its benefit only by utilizing the produced electricity. The exception does not envisage any misuse based on the inherently dangerous character of the NPP as is its use as a shield for the military base. 67 One would argue that the parties adopting API intended to provide higher protection to NPP, but such a claim collides with the fact that they enabled an exemption which relates to a general function of the NPP, namely providing electricity, but only retrieved for military uses. However, the more dangerous misuse, where a party intentionally capitalises on the NPP’s hazardous character, is not covered. Art 56 thus prohibits attacks on NPP due to the risk of dangerous release of radiation but does not provide a solution for situations where one party acts in bad faith and internationally breaks the rules only to subsequently use them for its own benefit. Ad absurdum , the provision terminates the protection based on the use of their electric power 65 ICRC ‘Guidelines on the Protection of the Natural Environment in Armed Conflict’ (2020) 66. 66 See ch 2.2.2 of this article. 67 See Art 56(2)(b) API ‘The special protection against attack provided by paragraph 1 shall cease: […] (b) for a nuclear electrical generating station only if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support’ (emphasis added).

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