CYIL vol. 14 (2023)

CYIL 14 (2023) VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … The party to the conflict that controls an NPP has an obligation to take all feasible measures to prevent the release of dangerous forces, even prior to an incoming attack, and to refrain from any action that would risk such a release. 35 In situations of occupation, they must take all the measures in their power to ensure public order and safety. 36 Such measures must include as a matter of priority those enabling the safe and secure operation of the NPP, notably: ensuring the functional maintenance of critical components, including back-up generators; ensuring operational staff can access the plant and/or critical components and are able to perform their tasks without undue restrictions, physical or psychological coercion, or any other form of unlawful treatment, and ensuring proper food and hygiene standards; and if the safe and secure operation of the facility cannot be guaranteed, shutting down the NPP partly or fully (with due consideration to the impact this would have on civilians, notably on electricity provision and subsequent availability of clean water and heating, etc.). 37 While the primary aim must remain to prevent the release of dangerous forces from an NPP, precautionary measures also include: establishing an early warning system for the civilian population that may be affected by an eventual radiation leak (including the civilian population under control of the adverse party, to the extent feasible); taking preparedness measures for evacuation prior to or following a nuclear accident; distributing in advance iodine tablets to the civilian population; providing risk education and safe behaviour information; and, in extreme circumstances, evacuating the civilian population from the areas surrounding the NPP. 38 Even if NPPs become military objectives, save for exceptional and narrowly defined circumstances during an international armed conflict, IHL strictly prohibits attacks against NPPs no matter how important the anticipated military advantage may be 39 and provides an additional layer of specific protection against direct attack and incidental harm for certain works and installations containing dangerous forces, 40 including NPPs. IHL mandates that both attacking and defending forces must take particular care if NPPs and other installations located at or in their vicinity are attacked, in order to avoid the release of dangerous forces and consequent severe losses among the civilian population. 41 The proscription on attacks, imposes an absolute prohibition based on whether two things are objectively foreseeable: first, whether the attack may cause the release of dangerous forces; second, whether the release of dangerous forces may cause ‘severe’ losses among the civilian population. Distinctly, in the rule on proportionality the standard is relative, based on an assessment as to whether the incidental loss of civilian life, injury, or damage to civilian objects may be expected to be excessive in relation to the concrete and direct military advantage anticipated from an attack. 35 Arts. 57(1) and 58(c) API; 13(1) APII; CIHL Rules 15, 22, and 42. 36 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land (hereinafter Hague Regulations), The Hague, 18 October 1907, Article 43. 37 Zeith, A., Georgiou, E. supra 6, at p. 3. 38 Ibid. 39 See BOTHE, M., PARTSCH, K., J., SOLF, W., A. in BOTHE, M. (ed.), New Rules for Victims of Armed Conflicts, Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (2013) Brill, at p. 396. 40 Article 56 API; 15 APII; CIHL Rule 42. 41 CIHL Rule 42.

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