Legal Aspects of Russia’s Attack on the Zaporizhzhya Nuclear Power Plant
Legal Aspects of Russia’s Attack on the Zaporizhzhya Nuclear Power Plant
by
LtCol Brent W. Stricker
The Russian attack on the Zaporizhzhya Nuclear Power Plant (ZNPP) on the night of 3-4 March 2022ATE] raises concerns that its damage or destruction could release radioactive material or cause a nuclear meltdown that endangers people or the natural environment. While details of the Russian action are uncertain, these same concern arose from Russian armed forces seizing the Chernobyl site. ZNPP is the largest nuclear power plant in Europe and one of four such installations in Ukraine housing 15 nuclear reactors. These installations provide half of Ukraine’s electricity. The importance of this critical infrastructure to the civilian population and the potential catastrophic release of radioactive material poses challenging questions in the law of armed conflict.
The law of armed conflict (LOAC) is governed by Hague and Geneva treaties and their protocols and customary international law. Russia and Ukraine are both parties to [spell out complete name of AP I (AP I), it is the point of departure for this analysis. The first issue is whether ZNPP is a legitimate target. Articles 51 and 52 are designed to protect civilians and civilian objects from attack. Article 52(1) defines civilian objects in the negative, as “all objects which are not military objectives.” Military objectives, defined in paragraph 2, “are limited to those objects which by their nature, location, purpose, or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” Article 52(3) resolves that the object should be treated as civilian if there is any doubt of its military character. Given that ZNPP appears to have dual value, principally as a facility that benefits civilians but also some utility for the Ukrainian military forces, ZNPP qualifies as a military objective. The ICRC commentary to Article 52 notes that any attack on such an object must be weighed under Article 57, which requires that attacks must consider “the military advantage anticipated, and on the other hand, the loss of human life which must expected among the civilian population and the damage which would be caused to civilian objects.”
Assuming ZNPP was a legitimate target and the Russian forces attacked it, Articles 55 and 56 must also be considered. Article 55 prohibits an attack that would “cause widespread, long-term and severe damage” to the natural environment. For example, Article 56 prohibits striking dams, dykes, and nuclear reactors that contain dangerous forces that are expected to be released. Both rules suggest that attacking ZNPP and risking a nuclear meltdown or wide-spread release of radioactive material are prohibited. However, neither rule expressly prohibits an attack on a nuclear power plant.
Article 56 protects works and installations containing dangerous forces. The commentary to Article 56 notes that the Article presents an exclusive list, which is limited to protecting “dams, dykes and nuclear electrical generating stations and other military objectives located at or in the vicinity of these works or installations.” (Customary international law, on the other hand, does not contain a comprehensive list of installations subject to the rule). Article 56 does not prohibit all attacks on these facilities. Rather, it only prohibits attacks that may release the dangerous forces and “consequent severe losses among the civilian population.” A similar attack on a nuclear power plant that does not result in environmental damage would not violate Article 55. Article 56(2)(b) authorizes an attack on a NPP “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 there are two occasions when an NPP may be attacked.
Article 56(5) poses a paradoxical problem in that it claims to provide protected status to forces and defensive installations around an NPP, but if an NPP is a valid military objective, these defensive forces would have to be the object of attack. Article 56(5) states, “[I]nstallations 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.” The Ukrainian guard sitting in a checkpoint would be protected. The commentary on paragraph 5 of Article 56 notes these facilities would need to be guarded against sabotage, particularly in times of war. Furthermore, anti-aircraft defenses could only be “used against aircraft which are out to attack the protected works or installations, but not against aircraft flying over the works or installations on their way to another military objective.” It would seem that if an NPP is a valid military objective, the forces defending it lose their Article 56(5) protected status.
The United States is not a signatory to AP I and would analyze the ZNPP attack under customary international law. This analysis suggests ZNPP is a valid military objective despite its status as a civilian object. ZNPP might be a dual use facility generating the electricity that may be used by both Ukrainian civilians and military forces. Attacking ZNPP requires a military objective to justify it. Any use of force against ZNPP would have to pass a proportionality test. Under customary international law, for example as described in the Navy, Marine Corps, and Coast Guard Commander’s Handbook, belligerents are required to weigh the effect of their attacks on a military object against the potential incidental and collateral damage to civilians and civilian objects. This potential damage may not be excessive or disproportionate to the military advantage to be gained from the attack. .
Since damage or destruction of ZNPP would risk the feared meltdown and release of radioactive material into the environment clearly violating the principle of proportionality to limit incidental and collateral damage. Also, ZNPP is responsible for generating one-fifth of Ukraine’s electricity, and its damage or destruction would have a significant impact on the population in late winter. Attacking ZNPP with damage or destruction as its goal does not seem to be a valid military objective and violates the rule of proportionality.
If the goal is to capture and secure the ZNPP facility, the reactors and control systems would not be the focus of the attack. If the ZNPP is secured similarly to U.S. NPPs, the guards and controlled access points may be the target to attack. Russian forces seem to have focused their operation away from the reactors with damage reportedly limited to ZNPP’s administrative office and a training center, although Reactor 1 reportedly received one hit.
The Russian assault successfully limited damage to ZNPP. According to Energoatom, the state agency responsible for operating Ukraine’s NPPs, Unit 1 was damaged, but had previously been shut down for repair. Units 2 and 3 were “transferred to a safe and cold position.” The fourth unit remained operational, and its location was described as “at the maximum distance from the firing zone.” No reactors or fuel storage areas were damaged and no radiation was released. Russian forces are guarding ZNPP and it remains operational with work shift changes implying the attack was designed to capture the plant rather than damage or destroy it. Consequently, the attack appears to have been consistent with customary international law. From what the media have reported, the limited nature of the Russian attack may have been calibrated to avoid the practical dangers of release of radioactive material in an armed conflict and the legal pitfalls presented by AP I and customary international law. This conclusion does not obviate the Russian aggression in invading Ukraine or reports of other incidents of violation of the law of armed conflict reportedly unfolding. Yet the apparent goal of the operation against ZNPP was to secure the facility and nuclear materials stored Russian forces avoided damage to the reactors or release of radioactive material.
