CYIL vol. 14 (2023)

VASILKA SANCIN CYIL 14 (2023) Energy (the Paris Convention) 17 and – more recently – under the new regime of liability under the Protocol to Amend the Paris Convention (the Revised Paris Convention) 18 is not part of this analysis, given that the two States in focus do not participate in this treaty regime. The VCCLND provides for exoneration from the strict liability of an operator of a nuclear power plant for ‘nuclear damage caused by a nuclear incident directly due to an act of armed conflict, hostilities, civil war, or insurrection.’ The phrasing is, however, fuelled with ambiguity and calls for further clarification. The case-study for this article is the Zaporizhzhia nuclear power plant in Ukraine. IHL (also known as the laws of war, or the laws of armed conflict) 19 – described as jus in bello , referring to the law applicable in armed conflict, 20 in contrast with jus ad bellum , which is the law that governs the resort to armed conflict 21 – emerges chiefly from the concept that conflict, being an inexorable part of human nature, is inevitable, and hence efforts should be made to create reasonable guidelines of conduct to mitigate harm. 22 Although primarily derived from international conventions, regulating the conduct and obligations of belligerent nations, neutral nations, and individuals engaged in war, it also provides for the status and treatment of protected persons, such as civilians, and protected objects, including works and installations containing dangerous forces, such as NPPs. The main IHL treaties, including the four Geneva conventions of 1949, 23 are supplemented by an extensive body of customary international law (CIL). 24 Nuclear facilities are covered and protected by IHL as civilian objects and parties to the conflict are obligated to take precautionary measures pursuant to any attack on military objectives within the vicinity of any civilian objects. Hence, the customary law principles of proportionality, distinction, and precautions are vital elements in establishing any form of liability/responsibility of parties to a conflict. The main objective is to avoid that NPPs become battlegrounds or subject to reprisals 25 or are incidentally damaged by the fighting. The NPPs shall not be attacked, and the parties to armed conflicts are under an obligation to avoid as much as possible any 17 The Convention on Third Party Liability in the Field of Nuclear Energy (adopted 29 July 1960), as amended by the Additional Protocol of 1964 (adopted 28 January 1964, entered into force on 1 April 1968) and by the Protocol of 1982 (adopted 16 November 1982, entered into force on 7 October 1988). 18 The Protocol to Convention on Third Party Liability in the Field of Nuclear Energy of 29 July 1960 as amended by the Additional Protocol of 28 January 1964 and by the Protocol of 16 November 1982 (adopted 12 February 2004, entered into force on 1 January 2022). 19 SHAW, M., N. International Law (2017) Eight Edition, Cambridge University Press, p. 891. 20 See, UK Ministry of Defence, The Manual of the law of armed conflicts, pp. 1–2; SANDOZ, Y., SWINARSKI, C. and ZIMMERMAN, B. Commentary on the Additional Protocols , Martinus, p. 26. 21 Ibid. 22 PICTET, J. Humanitarian Law and the Protection of War Victims , Leyden: Sijthoff; Geneva: Henry Dunant Institute, 1975, p. 30. 23 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; Convention (III) relative to the Treatment of Prisoners of War; Convention (IV) relative to the Protection of Civilian Persons in Time of War. 24 See Customary IHL Database (CIHL) at https://ihl-databases.icrc.org/en/customary-ihl [accessed 1 July 2023]. 25 Article 48 API, Rule 7 of the CIHL. 2. A Duty of Heightened Protection of Nuclear Power Plants in Armed Conflicts

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