CYIL vol. 14 (2023)

CYIL 14 (2023) VIENNA CONVENTION ON CIVIL LIABILITY FOR NUCLEAR DAMAGE … contemporary IHL framework, governing military operations involving NPPs, the issues of liability for consequential nuclear damage, and the potential co-applicability of more than one legal regime, are just as pertinent and complex. Applying, mutatis mutandis, the approach developed by the International Court of Justice in the Nuclear Weapons Advisory Opinion , 50 the VCCLND – primarily a treaty regulating civil liability for nuclear damage in peacetime – does not cease to apply in situations of armed conflicts, but IHL as lex specialis in such circumstances in principle gains primacy to the extent that it addresses the specific issues in question. In a way, IHL and the VCCLND complement each other, but in case of an overlap and conflict, the IHL prevails. In addition to issues of liability, questions of individual criminal responsibility may also arise, as attacks on NPPs might in certain circumstances constitute a war crime or even a crime against humanity, or in case of establishment of dolus specialis , an act of genocide. 51 Interestingly, while the VCCLND regime contains no pronouncements on relationship with other parts of international legal system, the 2005 Amendment to the Convention of Physical Protection of Nuclear Material, in Article 2(4) 52 explicitly states, 4. (a) Nothing in this Convention shall affect other rights, obligations and responsibilities of States Parties under international law, in particular the purposes and principles of the Charter of the United Nations and international humanitarian law. (b) The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by the military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention. (c) Nothing in this Convention shall be construed as a lawful authorization to use or threaten to use force against nuclear material or nuclear facilities used for peaceful purposes. (d) Nothing in this Convention condones or makes lawful otherwise unlawful acts, nor precludes prosecution under other laws. capacity located at the research Centre Tuwaitha near Baghdad.16 and first Gulf War of 1981 the United States Air Force attacked this same nuclear installation. MAPAKO, K., Z. The Nexus of Nuclear Security and Pertinent Armed Conflicts: A Reflection of International Law Applicability in the Ukraine-Russia Conflict. Opinio Juris , http://opiniojuris.org/2022/12/01/the-nexus-of-nuclear-security-and-pertinent-armed-conflicts-a-reflection-of international-law-applicability-in-the-ukraine-russia-conflict/ [accessed 1 July 2023]. 50 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226. 51 For example, under Articles 6 (genocide), 7 (crimes against humanity) and 8 (war crimes) of the Rome Statute of the International Criminal Court (hereinafter ICC) 2187 UNTS 3. Although, neither the Russian Federation, nor Ukraine, is a State party to the Rome Statute, on 9 April 2014 and 8 September 2015, respectively, Ukraine, deposited two declarations made under Article 12(3) of the Rome Statute, accepting the jurisdiction of the ICC with respect to crimes against humanity and war crimes, committed on its territory since 21 November 2013 onwards. See the Declaration by Ukraine lodged under Article 12(3) of the ICC Statute, 8 September 2015, at https://www.icc-cpi.int/iccdocs/other/Ukraine_Art_12-3_declaration_08092015.pdf [accessed 1 July 2023]. 52 Both, the Russian Federation and Ukraine, have accepted and ratified this amendment, respectively; see https:// www.iaea.org/sites/default/files/22/06/cppnm_amend_status.pdf [accessed 1 July 2023].

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