By George M. Moore | December 15, 2022
Russia’s war in Ukraine is approaching its tenth month with no apparent end in sight. All the while, the international community is still scrambling to respond to the threats of attacks on Ukraine’s nuclear reactors and nuclear facilities.
Russian occupation of the Chernobyl and Zaporizhzhia reactor sites early in the war has raised deeply concerning issues, as have more recent Russian attacks on Ukraine’s utility infrastructure. Even though they have not been directly attacked, other Ukrainian reactor facilities and their associated grid connections—at the South Ukraine, Rivne, and Khmelnytskyi nuclear power plants—remain within the range of Russian air, missile, and drone assets. One might think that Ukraine’s counteroffensive to the East and South this Fall might have lessened the threat to these facilities, but that’s not the case. Quite the opposite. The latest Russian actions in Ukraine seem to bear out the often-expressed concern that a diminished Russian military and political regime will lash out viciously in reprisal to cover its failings.
The late November shelling near the Zaporizhzhia nuclear power plant has raised new concerns about the safety of the reactors and spent fuel storage at the site. As has previously happened, the shelling was quickly followed by a series of counterclaims as to whether Russia or Ukraine was to blame. The IAEA, Ukraine, and even Russia’s state-controlled nuclear energy company, Rosatom—which has supervised operations at Zaporizhzhia but has not directly operated the reactors—have again warned of a possible nuclear accident at the plant.
Why the international community should act now. The international community seems to believe that the condemnation of Russia’s military actions in Ukraine is the appropriate approach while the conflict is still raging and that, somehow, a long-term resolution can come only once the war is over. Another belief seems to be that, because of its actions in Ukraine, it may take quite some time before Russia will be willing to rejoin the international community to better protect nuclear facilities from attacks. Others have argued that there is no need for any new legal framework and that the existing regime offers sufficient protections.
These assumptions, however, should be strongly reconsidered.
It is imperative for those countries that consider attacks on nuclear facilities in Ukraine to be extremely threatening to stop waiting for a disaster to happen and, instead, act immediately. Whether actions taken by the international community now would significantly reduce the probability of a nuclear accident in Ukraine is obviously debatable, but there is no doubt that waiting to act until after the war ends won’t do anything to increase the safety of reactors and facilities being threatened in Ukraine. Even though any actions now by the international community may not be enforceable, prompt action might have some impact on Russian political and military planners.
As the odds of a nuclear accident in Ukraine are growing, the international community has a responsibility to act. And to act now.
Extend the rules of war. While Russia’s actions at the Zaporizhzhia nuclear power plant have received widespread international condemnation, its attacks on reactors and nuclear facilities may not be illegal given the fact that no international agreement specifically addresses the issue.
To be clear, Russia appears to be responsible for significant violations of the Geneva Conventions and international human rights law with its treatment of the reactor operating staff at Zaporizhzhia as well as other incidents of mistreatment of the surrounding population. Attacking a nuclear power plant and its facilities, however, is allowed under international law and subject only to the constraints of Additional Protocols I and II of the Geneva Conventions and whatever might exist in terms of international norms and customary law on the subject. The Additional Protocol II applies to attacks in civil wars, while Additional Protocol I applies to wars between two countries. Therefore, even though the protection of nuclear facilities is dealt with in both protocols, only Additional Protocol I addresses conflicts like the Russia-Ukraine war.
Some could argue that Russia’s actions don’t go against international norms. But the creation of the Additional Protocols protecting facilities that represent a potential danger if attacked (such as dams, nuclear reactors, etc.) was necessary to respond to the prevalence of such attacks deliberately carried out during World War II. Prior to these protocols, the norm was that attacks on facilities were allowed, noting, however, that nuclear reactors and nuclear facilities did not exist during World War II. The United States has never ratified Protocol I, Russia has withdrawn its ratification, and several other countries have made reservations about their ratification of Article 56 of the Protocol which addresses the issues involved in an attack. Therefore, any argument that there is an international norm that already prevents attacks on nuclear facilities ignores the Protocols’ attempt to restrain the norm that attacking in wartime can be legally possible.
For its part, the United States has specifically rejected the prohibitions of Article 56 of Additional Protocol I. Its position is clearly set out in the US Department of Defense Law of War Manual which guides the actions of the United States in war. As stated in section 5.13 of the Manual:
Certain facilities containing dangerous forces, such as dams, nuclear power plants, or facilities producing weapons of mass destruction, may constitute military objectives. There may be a number of reasons for their attack, such as denial of electric power to military sources, use of a dangerous facility (e.g., by causing release from a dam) to damage or destroy other military objectives, or to pre-empt enemy release of the dangerous forces to hamper the movement or advance of U.S. or allied forces.
Attack of facilities, works, or installations containing dangerous forces, such as dams, nuclear power plants, or facilities producing weapons of mass destruction, is permissible so long as it is conducted in accordance with other applicable rules, including the rules of discrimination and proportionality. In light of the increased potential magnitude of incidental harm, additional precautions, such as weaponeering or timing the attack such that weather conditions would minimize dispersion of dangerous materials, may be appropriate to reduce the risk that the release of these dangerous forces may pose to the civilian population.
Further, section 5.13.1 of the Manual states:
Article 56 of AP I provides special rules for works and installations containing dangerous forces. For example, “[w]orks 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.” In addition, Article 56 of AP I provides immunity from attack to combatants and military equipment stationed or placed around works and installations containing dangerous forces “for the sole purpose of defending the protected works.”
The United States has objected to this article of AP I. In ratifying AP I, other States have taken reservations from this article. Insofar as Article 56 of AP I deviates from the regular application of the principles of distinction and proportionality, the U.S. view has been that it does not reflect customary international law applicable in international and noninternational armed conflicts.
As a start, the United States and other countries would need to reconsider their positions vis-à-vis Article 56 in order to protect nuclear facilities against attacks, and then work to achieve a consensus on international prohibitions on attacks.
The international community should agree on consistent and clear statements endorsed by a majority of countries and should define under what conditions, if any, attacks against nuclear reactors and nuclear facilities may be allowed during a war. Further, countries would need to delineate the specific procedures, both politically and militarily, by which any such allowed attacks could be carried out.
Any resulting legal regime should be unambiguous on what might constitute a justifiable legal basis for an attack on nuclear facilities. To continue delegating this decision to the sole judgment of military commanders at unspecified levels of command is not acceptable.
It is time for the United States and other countries to declare that the general law of war rules of discrimination and proportionality does not allow—under any circumstances—attacks on nuclear power plants or any other nuclear facilities that would result in the spread of radioactive substances into the environment. Any allowed attacks on such facilities would need to use procedures that would eliminate to the maximum extent possible the risk of release of radiation.
How to get there. A possible path forward to guarantee the safety of nuclear reactors and nuclear facilities in wartime would be for the international community to agree on a treaty, or a series of treaties, setting out specific agreements on these issues.
The stated goal of any international agreement should be that there shall never be a reactor accident, spent fuel accident, or any event releasing radioactive materials as a direct result of either an intentional or unintentional act of war. Drafting the language of such an agreement undoubtedly would require a breath of creative thinking and a new approach to these issues. Agreements could include such things as warnings of attack, exchange of information on the operating status of reactors, prohibition of any attack on a reactor that is in a state that makes it vulnerable to an accident (e.g., operating reactors), rules involving the International Atomic Energy Agency to assist in controlling any reactor or spent fuel in a war zone, creating an analog to the international law concept of free cities which would involve placing reactors and nuclear facilities under international control in wartime, among other rules.
Unfortunately, it seems unlikely that an international convention could be called now to develop a treaty on these issues. But this does not bar countries from organizing talks about how to protect nuclear facilities in wartime. One option could be for the United States to revisit the concept of the Nuclear Security Summits held between 2010 and 2016 during the Obama administration. Even though somewhat limited in scope, these summits were able to bring together international leaders and organizations such as the IAEA and Interpol in capitals around the world to discuss how to move forward on specific issues of nuclear security.
The Biden administration could, on its own initiative, invite countries to a new Nuclear Security Summit, extended to also address the safety of nuclear reactors and nuclear facilities in wartime. Since the summits of the early 2010s were so closely identified with President Obama, the Biden administration could also consider asking President Obama to chair such a summit and resolve to the greatest extent possible these issues. His lead—or contributions from any other former US president who enjoys favorable international approval—could create momentum and incentivize the international community to act now on these issues.
There can be no guarantee that any actions by the international community will have an immediate effect on the nuclear facilities being threatened in Ukraine. But there is little to no risk in undertaking an international effort now to reach an agreement on how to protect nuclear facilities (and any associated energy infrastructure) in wartime.
A revival of the Obama-era Nuclear Security Summits is one potential way forward to seek agreement on these issues, but it is certainly not the only path. Creative thinkers may come up with better workable alternatives to move now to protect nuclear facilities in Ukraine.
The growing risks to Ukrainian nuclear facilities show the importance of choosing an initial path forward now rather than waiting for the conclusion of the war, which one can hope will come before what would appear in retrospect to have been an avoidable nuclear accident.
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