Russia’s attack on Zaporizhzhia Nuclear Power Plant (ZNPP) is the first attack on a major operational nuclear site loaded with nuclear materials. It raises many questions regarding the legal protection of nuclear facilities from military attacks and the necessary adaptation of the nuclear security regime to prevent or mitigate such attacks in the future.
I did background research on the legal protection of nuclear facilities from military attacks for broader analysis but found the results interesting enough to share with readers.
Below are highlights of my research, followed by the list of articles I find most valuable.
Legal protection of nuclear facilities against military attack: current status and issues
Protocols I and II to the Geneva Conventions establish some basic prohibition of attacks against nuclear facilities. Protocol I addresses protection during international armed conflicts, while Protocol II addresses protection in non-international armed conflicts. Protocol I is more relevant to the conflict between Russia and Ukraine. I will limit the discussion to Protocol I only.
Protocol I, Article 56 - Protection of works and installations containing dangerous forces
1. Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.
2. The special protection against attack provided by paragraph 1 shall cease:
(a) for a dam or a dyke only if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;
(b) for a nuclear electrical generating station only 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;
(c) for other military objectives located at or in the vicinity of these works or installations only if they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.3. In all cases, the civilian population and individual civilians shall remain entitled to all the protection accorded them by international law, including the protection of the precautionary measures provided for in Article 57 . If the protection ceases and any of the works, installations or military objectives mentioned in paragraph 1 is attacked, all practical precautions shall be taken to avoid the release of the dangerous forces.
4. It is prohibited to make any of the works, installations or military objectives mentioned in paragraph 1 the object of reprisals.
5. The Parties to the conflict shall endeavour to avoid locating any military objectives in the vicinity of the works or installations mentioned in paragraph 1. Nevertheless, installations erected for the sole purpose of defending the protected works or installations from attack are permissible and shall not themselves be made the object of attack, provided that they are not used in hostilities except for defensive actions necessary to respond to attacks against the protected works or installations and that their armament is limited to weapons capable only of repelling hostile action against the protected works or installations.
6. The High Contracting Parties and the Parties to the conflict are urged to conclude further agreements among themselves to provide additional protection for objects containing dangerous forces.
7. In order to facilitate the identification of the objects protected by this article, the Parties to the conflict may mark them with a special sign consisting of a group of three bright orange circles placed on the same axis, as specified in Article 16 of Annex I to this Protocol [Article 17 of Amended Annex]. The absence of such marking in no way relieves any Party to the conflict of its obligations under this Article.
There are many issues with Protocol I: 1) It applies to “nuclear electrical generating stations“ (nuclear power plants) only and does not apply to other nuclear facilities; 2) attacks are prohibited only if “such attack may cause the release of dangerous forces and consequent severe losses among the civilian population“ - vague provision subject to broad interpretation; 3) attacks are allowed, if [NPP] “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.“
Some researchers argue that Protocol I establishes nearly absolute prohibition as conditions allowing attacks against NPP are hard to achieve and justify. Others argue that “Protocol I is flawed because it is “written in language that is at once lengthy, complex, vague and incomplete” and therefore “poses formidable obstacles to any military planner attempting to respect it.“ I am leaning towards the latter point of view, as the former looks idealistic, while provisions of Article 56 leave ample room for interpretation and discretion of the attacking side.
In his piece written immediately after the Russian invasion started, George Moore rightfully notes: “One must keep in mind, however, that for the most part, treaties and international norms provide little or no ability to enforce their terms and concepts against parties in violation, mainly when the party in violation is a major state that is not subject to some sort of coercion or, for example, action against it by the UN Security Council or other collective bodies. Thus, it is highly doubtful that the Russian Federation will be restrained against further actions against nuclear power plants or other dangerous facilities in Ukraine by anything other than self-restraint, a possibility which seems to be highly improbable given the current state of Russian politics.“
Some researchers argue that the current state of international law addressing attacks on nuclear facilities is a feature, not a bug, and will not be changed significantly. The ability to attack a nuclear facility is seen as a coercion tool in the counterproliferation context (with the United States being a key actor) or broader context (e.g., in the case of Russia’s war in Ukraine). Some researchers even argue that the threat to attack NPPs is one of the tools in Russia’s arsenal.
Geneva Conventions with Protocols lack any serious enforcement mechanisms. The only tool that can be useful to document and validate violations of established requirements is the International Humanitarian-Fact Finding Commission, which was established following Protocol I to investigate allegations of grave breaches and serious violations of international humanitarian law. Any State could accept the compulsory jurisdiction of this Commission or not. If the State voluntarily accepted the Commission’s right to investigate any violations of the Geneva Conventions and Protocol I committed by that State during the international conflict, then upon ratification of the Protocols, it should have made a corresponding statement. If a State did not make such a statement upon ratification of the Protocols, the International Commission may investigate violations of the norms of International Humanitarian Law committed by that State only upon the consent of that State. Ukraine accepts the compulsory jurisdiction of the Commission. Russia withdrew from the jurisdiction of the Commission in 2019. Thus, the Commission can only investigate international law breaches during the Russia-Ukraine war with Russia’s consent.
Certain regional agreements contain stronger commitments not to attack any nuclear facility on the territory of member states. Agreement between India and Pakistan on the prohibition of attack against nuclear installations and facilities (India-Pakistan Non-Attack Agreement) of 1988 prohibits the parties from “undertaking, encouraging or participating in, directly or indirectly, any action aimed at causing the destruction of, or damage to, any nuclear installation or facility in the other country,” while providing comprehensive definition of nuclear faclity as “nuclear power and research reactors, fuel fabrication, uranium enrichment, isotopes separation and reprocessing facilities as well as any other installations with fresh
or irradiated nuclear fuel and materials in any form and establishments storing significant quantities of radioactive materials.“ African Nuclear-Weapon-Free-Zone Treaty (Pelindaba Treaty) establishes that “each Party undertakes not to take, or assist, or encourage any action aimed at an armed attack by conventional or other means against nuclear installations in the African nuclear-weapon-free zone“ and also establishes comprehesive definition of nuclear facility that “means a nuclear-power reactor, a nuclear research reactor, a critical facility, a conversion plant, a fabrication plant, a reprocessing plant, an isotope separation plant, a separate storage installation and any other installation or location in or at which fresh or irradiated nuclear material or significant quantities of radioactive materials are present.“
A nuclear security regime largely based on the International Atomic Energy Agency recommendations does not address threats beyond Design Basis Threat (DBT). DBT establishes threats the site can reasonably address using traditional nuclear security tools, like physical protection equipment and protective forces attached to the site. Anything beyond DBT must be addressed by the state using state military, law enforcement, and emergency response capabilities, with the limited role of the site. Russia’s attack on Ukrainian nuclear sites is clearly beyond DBT. This critical issue must be addressed when enhancing the nuclear security regime.
Aside from the legal provisions related to the protection of nuclear facilities, there is an issue with the legality of the Russian control over ZNPP and the Russian invasion of Ukraine as a whole. Russia claims its ownership of ZNPP and provides multiple reasons in justification of its attack on Ukraine. None of these claims look reasonable to me, but I haven’t seen their legal assessment [this does not mean they are unavailable].
Reading List
Below is the list of articles I find particularly valuable.
How international law applies to attacks on nuclear and associated facilities in Ukraine, by George Moore, March 6, 2022. Read this article if you have time for only one article. Written in the first days of Russia’s invasion of Ukraine, it provides a good overview of applicable legal instruments and technical background of the risks of attack at ZNPP.
Prohibition of military attacks on nuclear facilities, by John Carlson, September 2022. This is another concise yet comprehensive review by another nonproliferation and nuclear security veteran. It provides a relatively detailed overview of applicable legal instruments. It reflects developments between the start of the war in February 2022 and September 2022, in particular, the “seven indispensable pillars” proposed by the IAEA Director General Grossi.
Dangerous forces: the protection of nuclear power plants in armed conflict, by Abby Zaith and Eirini Giorgou, Legal Advisers to the International Committee of the Red Cross, October 2022. This article provides a detailed overview of Protocols I and II and their applicability to the situation around ZNPP. In my opinion, the authors are a bit optimistic about the strength of these instruments.
Nuclear security during armed conflict: lessons from Ukraine, by Vitaly Fedchenko, March 2023. The article reviews the current situation in the context of the longer-term evolution of the nuclear security regime. It focuses on the challenges of responding to threats beyond DBT, including attacks by the state, rather than preventing them.
Justifying attacks on nuclear facilities, by Ludovica Castelli and Olamide Samuel, February 2024. The article reviews past attacks on nuclear facilities, with a particular emphasis on the rationale offered by the attacking states and the subsequent political responses of the international community. The provided analysis reveals that the lax legal regulation of such attacks is not a flaw but rather a feature of the global nuclear nonproliferation regime.
Protecting nuclear facilities from military attack: prospects after the Gulf War, by Burrus Carnahan, July 1992. Written over 30 years ago after the Gulf War and the United States attack on a nuclear research center in Iraq, this article is very relevant to the current situation, yet it is skeptical about the authority of Protocol I to the Geneva Conventions.
Russia didn't attack the ZNPP, how absurd is that?
To begin with, it controls it, why would it shell it?
And then there are the well establiished details and facts on the ground.
1) You know that where artillery shells came from can be very clearly established from the site of impact? And that exercise has been done many times in Energodar -- they come from the other side of the river, not from the south.
2) As time went on, the shells became 155 mm. NATO standard. Not 152 mm.
3) The drones that are regularly hitting Energodar are also clearly Ukrainian, not Russian.
4) NPPs have also been attacked, on many occasions since the start of the war, in Russia itself. The Kursk NPP most often because it is close, with direct drone hits on the reactor building (which don't do any real damage as they are small, but still), but there were also attacks on the Smolensk and Novoronezh ones too. And those are escalating too -- last week a ballistic missile (!!!) was intercepted on its way to Kurchatov.
So you are trying to tell us that:
1) Russia is shelling itself, and not just in Energodar, but in Kursk, Voronezh and Smolensk
2) It is doing this by sending some kind of special forces with artillery and missile launchers behind enemy lines to fire from there in the direction of Russia
3) It has even acquired NATO shells and howitzers for that purpose.
Read that again and think about it.
I leave it at that.