CYIL vol. 14 (2023)

CYIL 14 (2023) PROTECTION OF NUCLEAR POWER PLANTS IN INTERNATIONAL ARMED CONFLICT Art 56 thus rather serves to a party as a double-edged sword. The provision protects its NPP from the adversary but if they nonetheless proceed with the attack and occupy the NPP, the restrictions previously applied to them now bind the former defender. The argument that Art 56 does not prohibit the party to retake its site, thus, does not hold, as the rules apply to the former defender to the same extent as to the attacker, notwithstanding the illegality of the actions of the latter. 3.3 Cessation of protection in cases where NPP is used for military purposes Another possible argument is that the protection of Art 56 does not apply if the NPP ceases to fulfil its original peaceful objective and is misused for war purposes. Indeed, the use of the NPP as a shield for a military base used as an artillery post constitutes such abuse. Following this theory, the use of NPP in such a way would render Art 56 API inapplicable. The text of the article does not differentiate between facilities used for peaceful or other purposes. This goes in hand with the object of protection –– to safeguard civilians from the potential release of dangerous forces. When introducing the draft article, the ICRC emphasised that the omission of the distinction between civilian, military or combined uses has been intentional as the purpose of the article was not to protect the works themselves but to avoid the release of dangerous forces. 76 However, on the reading through travaux préparatoires , the difference of views is apparent. Whereas some delegations, in concord with ICRC’s proposal, supported the broad application of the article, others preferred to limit the scope of protection by excluding the cases where the facility is misused for military advantage. 77 Even though the final text has been accepted without such distinction, the division among the parties apparently endured even after the adoption of API as several States in their military manuals broaden the exception from Art 56 also to scenarios where the facility is used for other than civilian purposes. For instance, according to military manuals of Australia, Argentina, Germany, and a bit ironically, Russia the special protection of NPP ceases if the facility is used in regular, significant and direct support of military operations, and an attack is the only feasible way to terminate such support. 78 Such understanding, by leaving out of electricity supply requirement, broadens the exception to Art 56(1) to the same level provided to military objectives located in the vicinity under Art 56(2)(c). Similar provisions can also be found in the military manuals of Spain or Ukraine. 79 For Cameroon, the protection is lost when the facilities ‘are used as tactical support by the belligerents’. 80 76 Diplomatic Conference (n 18) Volume XIV, CCDH/III/SR.18, 154 para 16. 77 Diplomatic Conference (n 18) Volume XIV, CCDH/III/SR.18, 155–157 paras 26, 29. 78 Australia Manual (n 29) paras 9.37–9.38; Argentina, Leyes de Guerra , PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, para 4.04; Germany Manual (n 50) para 465; Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, para 1. 79 Spain, Orientaciones. El Derecho de los Conflictos Armados , Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, para 2.4.c.(6); Ukraine, Manual on the Application of IHL Rules , Ministry of Defence, 11 September 2004, para 1.2.47. 80 Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées , Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, 20, para 226.

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