CYIL vol. 14 (2023)

JAN MAIS CYIL 14 (2023) but allows for situations where NPP is misused to produce plutonium for nuclear weapons purposes. 68 The more permissive rule can be, however, found with regard to military objectives located in the vicinity of NPP, which permits an attack 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’ . 69 Should these cumulative criteria be met, the protection given to military objectives in the vicinity of NPP by Art 56(1) API would indeed cease to apply. 3.2 Possibility to retake NPP An argument that could be made is that the applicable rules differ where a party, whose NPP has been seized and occupied, would launch an attack in an attempt to retake the facility back under its control. However, the ‘attack’ within the meaning of the Art 56 API is defined in Art 49 as ‘acts of violence against the adversary, whether in offence or in defence ’. 70 This suggests that protection from attacks applies also to the same extent to NPP located in the defender’s own territory but occupied by the adversary. 71 Especially in cases where such a party is the victim of aggression, it may seem natural to favour it to retake its NPP. However, this brings back the need for differentiation between jus ad bellum and jus in bello . The rights of the State are irrelevant in this case, as one of the reasons for the separation between the two regimes is that IHL is to set forth objective rules of behaviour binding parties to a conflict for the benefit of individuals affected by war. 72 Following this, the individual rights of States cannot be taken into account as the aim of IHL reflects the balance between humanitarian concerns and considerations of military necessities. 73 For the potential grave consequences to the civilian population in case of the release of dangerous forces contained in the protected works, the humanitarian imperative is exceptionally high as reflected in Art 56 API. Putting the NPP through yet another attack with the same risks of radiation release would thus not serve the purpose of the article. Consequently, the State resorting legally to the use of force is constrained by the same IHL rules as the adversary, irrespective of his illegal recourse to the use of force. 74 Also, at the level of IHL, it is necessary to set aside whether the NPP has been taken in accordance with IHL or not. Launching an attack against an NPP is, under certain conditions, considered a grave breach of the API, constituting a war crime. 75 Similarly, Art 56(5) compels the party to avoid locating any military objectives in the vicinity of protected work, and any defending installations and their armament must be restricted solely to repelling the hostile action –– a limitation in the present case clearly exceeded. However, none of these violations empowers the State to resort to a counterattack in an attempt to retake its NPP back.

68 Dupuis, Heywood and Sarko (n 35) 468–469. 69 Art 56(2)(c) API. See ch 2.3 of this article. 70 Art 49(1) API (emphasis added). 71 Commentary (n 33) para 2152; Morgandi and Betin (n 3).

72 SASSÒLI, M., ‘ Ius ad Bellum and Ius in Bello – The Separation Between the Legality of the use of Force and Humanitarian Rules to be Respected in warfare: Crucial or Outdated?’ in SCHMITT, M. and PEJIC, J., (eds), International Law and Armed Conflict: Exploring the Faultlines (Brill | Nijhoff 2007) 245. 73 KLEFFNER, J. K., ‘Scope of Application of International Humanitarian Law’ in FLECK, D. (ed), The Handbook of International Humanitarian Law , (4th edn, OUP 2021) 50. 74 Ibid. 75 Art 85(3)(c) API in connection with Art 85(5) API.

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