How Are Nuclear Power Plants Protected by Law During War?
The world held its breath when, on the morning of March 4, 2022, reports became public that Russian military forces had attacked the largest nuclear power plant in Zaporizhzhia in Ukraine during the night, putting parts of it on fire. Fortunately, it was “only” an administrative building, and the fire was quickly extinguished. The reactors did not take any damage and probably no radiation leaked out. A few days earlier, Russian forces had used military means to seize the former nuclear power plant in Chernobyl. In the process, a storage facility containing radioactive waste was also reportedly fired upon; elevated radiation levels were measured at times. It is well known that even in peacetime there is a danger from nuclear power plants if they are not operated correctly. In conflict, especially if they are directly involved in the conduct of hostilities or are situated in an area of combat, this risk is many times higher. But how are nuclear power plants protected in war? Head and gut say that they should be excluded from the conduct of hostilities because of their danger to people and the environment, but were states able to agree upon such a prohibition? After all, disrupting the military’s power supply can generally lead to a military advantage, even if civilians suffer as a result. In the following, I will explore these questions and analyze whether international humanitarian law permits attacks on nuclear power plants despite the danger.
Nuclear Power Plants Are Not Generally Exempt from Acts of War
Acts of aggression by states have been outlawed in international law since the Briand-Kellogg Pact of 1928 and are prohibited by Article 2(4) of the UN Charter. This prohibition constitutes even a peremptory norm of general international law (jus cogens). Nevertheless, on February 24, 2022, the Russian Federation under President Putin launched an unlawful aggression against Ukraine. Even if this act constitutes a breach of international law, the following conduct of hostilities has to follow international humanitarian law; its rules and principles must be respected by all parties to the conflict. This applies to the armed forces of the Russian Federation as well as those of Ukraine as belligerent parties in an international armed conflict. International humanitarian law, codified in the four Geneva Conventions and two Additional Protocols, is designed to protect civilians from the conduct of hostilities. Civilians and civilian objects are to be spared and protected from the hostilities, according to the principle of distinction as a cardinal principle of international humanitarian law (cf. Article 51 of Additional Protocol I) among other provisions; collateral damage to the civilian population is also to be avoided based on the principle of proportionality. Nevertheless, civilians often fall victim to armed conflicts, including in this conflict. In addition to the protection of the civilian population and civilian objects, there are other protected groups and objects in international humanitarian law that are given special protection because of their importance or their potential danger. This applies to cultural property, churches or medical personnel, but also to nuclear power plants or dams.
Special Danger from Nuclear Power Plants
Due to the special danger posed by nuclear power plants, states were able to agree on regulating attacks on “nuclear electrical generating stations” and hence nuclear power plants in the Additional Protocols to the Geneva Conventions in the 1970s. However, granting a general immunity to nuclear power plants from the conduct of hostilities did not find consensus among states. Under certain circumstances, even nuclear power plants can be attacked if the military advantage of such an attack outweighs the danger and damage. Nevertheless, there was consensus among the High Contracting Parties to Additional Protocol I to nuclear electrical generating stations under special protection in Art. 56 on “Protection of works and installations containing dangerous forces” in international armed conflict between two High Contracting Parties.
How Should an Attack on a Nuclear Power Plant be Evaluated under International Law?
The legal framework in this regard is primarily provided by Additional Protocol I. The Russian Federation and Ukraine are each party to it. Neither of them has made any reservations regarding Art. 56 of Additional Protocol I, hence Art. 56 of Additional Protocol I applies to the conflict.
In Art. 56(1) sentence 1 of Additional Protocol I, the High Contracting Parties have agreed in general that “nuclear electrical generating stations” may not be attacked, even if they constitute a lawful military target and may thus be lawfully attacked. This relates to the principle of distinction in international humanitarian law, which requires a distinction between civilian and military targets, whereby only military targets may be attacked under certain conditions. Sentence 1 concretizes the prohibition of attacks against nuclear electrical generating stations: This prohibition only regards attacks which may result in the release of dangerous forces, in this case radioactive radiation, and consequently causes severe losses among the civilian population. The raison d’être of international humanitarian law, namely the protection of the civilian population from the consequences of hostilities, is thus specifically applied to nuclear power plants in Article 56 of Additional Protocol I. This prohibition in para. 1 is then qualified in para. 2: This protection does not apply to nuclear power plants “if it provides electric power in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.” Thus, in Article 56(2) of Additional Protocol I, the High Contracting Parties have agreed on a high threshold for lawful attacks on nuclear power plants and balanced such an attack in terms of the principle of military necessity and the principle of proportionality. There may be constellations in which the military advantage from such an attack prevails, even in the case of nuclear power plants. This provision also takes into account that nuclear power plants can represent so-called dual-use objects, menaing they serve civilian and military purposes at the same time.
A Question of Proportionality
It can be assumed that the nuclear power plants in Ukraine currently supply the civilian population as well as the armed forces with electricity. Thus, they also provide regular and direct support to the war effort. However, it is questionable whether this constitutes “significant” support, and whether attacking nuclear power plants is the only feasible way to end this support. In the context of weighing the military advantage against the consequences for civilians, milder means must be considered. Although it is difficult to think about “milder” means in such a serious scenario, international humanitarian law may allow such action on the basis of military advantage and proportionality. However, it should not be forgotten that these “milder” means will have serious consequences for the civilian population by interrupting their power supply in winter. Due to our values and morals, these considerations may be very difficult; nevertheless, a nuclear disaster would have more far-reaching consequences. Thus, before a nuclear power plant and its reactors may be lawfully attacked, the infrastructure to the nuclear power plant (e.g., power lines or transformers) could be lawfully attacked first to interrupt the energy supply of the enemy forces (with consequences on the civilian population), with less serious harm than a nuclear catastrophe. One could also consider a covert operation to shut down a nuclear power plant while the reactors are sufficiently cooled to achieve the military objective of disrupting the military’s energy supply. “Rendering useless” is not prohibited by Article 56 of Additional Protocol I, as is the case, for example, with Article 54(2) of Additional Protocol I with respect to items essential for the survival of the civilian population. In this context, however, it could be considered to what extent the power supply in winter is indispensable for the survival of the civilian population today.
Furthermore, due to the uncontrollable and serious damage that radioactive radiation can cause to the civilian population, it is difficult to imagine which military advantages could actually outweigh such massive damage. This has to be considered especially with regard to Art. 56(1) + (3) of Additional Protocol I and the principle of distinction as well as the principle of proportionality. Moverover, the Russian armed forces are obliged under Article 57 of Additional Protocol I to take precautionary measures to protect the civilian population from their attacks. Thus, special caution is required in attacks against nuclear power plants.
Attacks in the Vicinity of Nuclear Power Plants
According to Art. 56(1) sentence 2 of Additional Protocol I, the same applies to military targets in the vicinity of nuclear power plants, even if these military targets may in principle be legally attacked. The same standard applies here as for attacks on nuclear power plants.
Shutting Down and Disabling Nuclear Power Plants?
In order to protect its own civilian population, the Ukrainian government, as the attacked party, may also be required to take protective measures on the occasion of the Russian military conduct. In order to protect its citizens from radioactive radiation caused by attacks on nuclear power plants, the nuclear power plants could, for example, be shut down and deactivated. These precautions are based on Art. 58(3) of Additional Protocol I. This provision is directed at both attacking and attacked states. It also noteworthy that Ukraine, as a party to the conflict under attack, may not likewise attack a Russian nuclear power plant as a reprisal; the Old Testament’s principle of “eye for eye, tooth for tooth,” is explicitly prohibited in Article 56(4) of Additional Protocol I.
Serious Violation of Additional Protocol I
Thus, if there is a serious risk that a direct attack by Russian military forces against a nuclear power plant will release radioactive radiation, which in turn will cause significant losses in the form of severe and long-term damage to the health of the civilian population and the environment, then such attacks, in the absence of prior less dangerous attacks with the same objective, are disproportionate and illegal under international law. Moreover, such a violation can be considered a grave breach of Additional Protocol I within the meaning of its Art. 85(3)(c) due to the serious health hazards to the civilian population caused by the radioactive radiation, and thus constitutes war crimes under Article 85(5) of Additional Protocol I. At the same time, however, Ukraine is also obliged to protect its civilian population, if necessary, by shutting down nuclear power plants.
Outlook: Danger from Other Dangerous Facilities?
In addition to the danger of attacks against Ukrainian nuclear power plants with a total of 15 nuclear reactors, there are similar risks from attacks against other dangerous facilities, such as oil depots, refineries, pipelines, chemical plants, metallurgical plants and mines. Some have also reported on attacks against research facilities with nuclear reactors. There are concrete health risks to civilians as well as imminent and very serious damage to the environment from this type of warfare, as highlighted by President Selenskyj after the attack on Zaporizhzhia. However, these other installations are not under the special protection of Article 56 of Additional Protocol I; they are protected through other and more general provisions (for example, by Article 55(1) of Additional Protocol I on environmental protection) and, inter alia, by the principle of distinction and the principle of proportionality. Experience shows that this type of warfare leads to long-term damage to health and the environment, which will not stop at the borders of Ukraine.