Introduction

Humanity’s wars have seen a slew of instances in which installations containing dangerous forces, such as dams and dykes, became the target of military operations, and such installations were particularly damaged during the twentieth-century wars. To thwart the advance of Japanese troops, Chinese authorities blew up dams on the Yellow River in 1938. Later, similar attacks were carried out during the Korean and Vietnam wars. Over the years attacks of nuclear facilities and high risk military operations have been launched that threatened the nuclear security regime with the 7 June 1981 attack, when Israel bombed the French-made OSIRAK research reactor of 40 MW 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. Increased geopolitical tensions and armed conflicts around the world, particularly in nuclear weapon states, have recently posed a threat to international nuclear security. Nuclear risk is high, and the humanitarian consequences of nuclear weapons or nuclear leakage from nuclear facilities have historically resulted in catastrophic outcomes, and history may repeat itself. The current nuclear security climate is exemplified by President Putin’s implied or explicit threat to use nuclear weapons, Russia’s occupation of the Chernobyl reactor complex, and forces shelling and occupying the Zaporizhzhia nuclear power plant. The occupation of the plant raised a slew of questions about how international law governs military operations involving nuclear power plants, as well as liability for consequential nuclear damage. Is there an intertwinement or dual application of international nuclear legal regime and international humanitarian law? Does the international nuclear legal regime and IHL provide comprehensive obligations and regulation against nuclear facility attacks? Finally, this paper will look at the legality and consequences of threatening to use nuclear weapons in the context of non-proliferation and disarmament efforts.

How International Law Governs Military Operations Involving Nuclear Power Plants

International law has a legal corpus that specifically governs means and methods of conduct from different parties during an armed conflict, thereby establishing rights and obligations for all the stakeholders involved and to be affected by the conflict. This is enshrined in the IHL jurisprudence as covered by Geneva Convention IV and Additional Protocol I & II to the Geneva Conventions. Although there are other bodies of law that can be applicable to protect the interest of stakeholders affected by an attack on a nuclear power, international humanitarian law holds the upper hand through the principle of lex specialis central in international law applicability. International humanitarian law has explicit rules that prohibit against any attack of nuclear installations or electric power facilities, thus 1977 First Additional Protocol (AP I), but they are also protected under the 1977 Second Additional Protocol (AP II) and customary international humanitarian law applicable in international and non-international armed conflicts. Including Article 56 (1) of the additional protocol 1 .

The attack on Zaporizhzhia by Russia military forces has been in contravention of IHL and opened up a much needed conversation regarding the effectiveness of international humanitarian law in protecting civilian objects during an armed conflict. Nuclear installations generating electricity are civilian objects, which are protected by Article 48 of AP1 and customary international humanitarian law rule 7. Therefore the applicability of international law as far as providing regulation is concerned is ensured without question. Given the potential catastrophe caused by leakage of radiation to the civilians’ wellbeing and the environmental impact, an attack on the nuclear facility in Ukraine should raise alarm and striking concerns to the international community as far as the risk and humanitarian factor of the Ukraine-Russia conflict is concerned.

Is There an Intertwinement or Dual Application of International Nuclear Legal Regime and International Humanitarian Law?

With the principle of lex speclialis and lex generalis heavily contested in international law as far as the application and enforcement of international law is concerned. The concerted effort of two bodies of law to be applied in a particular situation is always a subject for complication. However, with the effectiveness of IHL constantly debated, the principle of complementarity has always been active especially between international human rights and international humanitarian law in armed conflict. In the contest of nuclear security vis-à-vis an active armed conflict. Nuclear security should be ensured in times of peace and war. The attack of a nuclear facility in Ukraine by Russia does not negate or eliminate the already existing obligation of the nuclear security regime to ensure protection of nuclear facilities. The amendment to the Convention of Physical Protection of Nuclear Material article 2A(1c) prohibits any sabotage to any nuclear facility. The attack by Russia on the nuclear facility can be regarded as such, as there were alleged shelling on the nuclear facility disturbing the facility’s daily operations. Instead of having selective application of these two legal regimes, it is highly effective to have these two bodies of law complement each other in their application . The intertwinement of the nuclear security regime and IHL is needed, as international legal instruments are subject for interpretation and this usually creates loopholes which can be exploited and used as pretext for war crimes and further violation of international law. This is exhibited by the attack on Zaporizhzhia by Russia in Ukraine, which already is a subject for debate. Despite the extensive rules that prohibit the attack on civilian objects and nuclear installations by IHL jurisprudence, the Additional Protocol 1 Article 56 literature is not air tight in its expression of obligations and limitations for parties in an armed conflict.This article which is central as far as attacks on nuclear installations are concerned is not comprehensive as it is always subject to a wide interpretation giving room for parties to exploit. It does not explicitly state that attacks on nuclear facilities are always off limits only to the extent in which the attack may cause release of radioactive material causing harm to the environment and civilians. In this case Article 2(1b)(ii) of International Convention for the Suppression of Acts of Nuclear Terrorism clearly expresses obligations to parties against attack on nuclear facilities without any room for wide interpretation. With the shift in international legal paradigm and extensive interpretation of conventions in practice. There is a huge gap that can be filled by dual application of these two bodies of law in order to strengthen the nuclear security regime during times of a conflict.

Liability for Consequential Nuclear Damage

In order to comprehend the extent of liability of any consequential nuclear damage pursuant to an attack on a nuclear facility, it is essential to understand the responsibility of any party in control of the nuclear facility during an armed conflict. In the case of Russia and Ukraine, the attack and seizure of the Zaporizhzhia nuclear facility is argued to be part of Russia’s occupation efforts in Ukraine. Nuclear facilities are covered and protected by international law as civilian objects under IHL. In this regard 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 principle of proportionality, principle of distinction and precaution are vital elements in establishing any form of liability on parties to a conflict. As established in the advisory opinion of ICJ, the court stated that the principle of distinction was one of the “cardinal principles” of IHL and one of the “intransgressible principles of international customary law”. Since the seizure of Zaporizhzhia by Russia is undisputed, Russia has the responsibility to ensure the safety and continued operation of the nuclear facility. Such measures must include as a matter of priority those enabling the safe and secure operation of the power plant are able to perform their tasks without undue restrictions. Russia is reported to have violated the aforementioned laws as continued shelling directed at or from the nuclear plant has periodically disabled the facility’s connection to Ukraine’s electrical power grid, risking a radioactive leak. Due to the unprecedented nature of the occupation of the nuclear facility by Russia, IAEA established seven essential safety safeguards to be followed and implemented. It is within this context that the gap of a comprehensive convention that poses responsibility on any part during an armed conflict to ensure safety and security of a nuclear facility is exhibited. The nuclear security regime does not have a clear legal framework that comprehensively covers such circumstances. As witnessed by IAEA developing seven safety, security and safeguards in Ukraine. Considering the constant shift in the international security challenges and conflict paradigm there is an urgent need to match up or even surpass these developments by establishing a sufficient and compact legal framework.

The Legality and Consequences of Threatening to Use Nuclear Weapons in the Context of Non-proliferation and Disarmament Efforts

Apart from the much needed debate of the applicability of the principle of jus ad bellum in the Ukraine-Russia conflict. It is also central to discuss the other part of the dualist principle thus ‘jus in bello ‘.In the Ukraine-Russia conflict, its reported President Putin has threatened the use of nuclear weapons in the conflict. Earlier in February 2022, Russia’s president threatened the use of nuclear weapons in the Russia-Ukraine conflict. Recently the threats escalated as he pledged that Russia would use “all weapons systems available” to protect its “territorial integrity,” Russia’s “people” as well as Russia’s “independence and freedom”. The use of nuclear weapons in combat during an ongoing-armed conflict is prohibited under IHL, as nuclear weapons are not selective in their deployment and results upon impact. There is no way to control how far the impact of a nuclear weapon would go due to radiation fall out causing massive short term and long term loss of human life and environmental damage. This is in contravention of the principle of proportionality and distinction. However, looking at the International Court of Justice advisory opinion ruling, it established that while the threat or use of nuclear weapons is generally prohibited by IHL, it is unclear whether such a threat or use of nuclear weapons would be permissible in extreme circumstances where a state’s very survival is at stake. Therefore this creates a gap, which can be exploited by Russia in the Ukraine-Russia conflict, as Russia only needs to establish pretext of its sovereignty and territorial integrity under attack to justify its threat or use of nuclear weapons. This has already been witnessed in the ongoing conflict as Russian President Putin in his latest threat to use nuclear weapons he established pledged that Russia is willing to defend Russia’s integrity with everything in its arsenal that includes nuclear weapons. In the context of the global disarmament and nonproliferation efforts such remarks by President Putin in this conflict heightens nuclear security risks and a humanitarian catastrophe at the expense of collective efforts by nuclear weapons states to propel disarmament and collective nuclear security regime.

Conclusion

The Ukraine-Russia conflict has exposed the existing gaps of international humanitarian law and nuclear security legal framework. With these legal areas relevant and present for application in this conflict, it is clear that each area doesn’t provide comprehensive support for nuclear security and complete adherence by parties involved. This reinforces the need for dual application of IHL and nuclear security legal framework during times of an armed conflict. The nexus of nuclear security vis-à-vis armed conflicts sets the tone for applicability of the nuclear security regime and IHL in the pursuit for peaceful, safe and sustainable solutions during a conflict.

This article was authored by AFRICSIS’ Research Officer Kudakwashe Z Mapako and first published by OpinionJuris on 1st Dec 2022