Why a new convention to protect nuclear installations in war is a bad idea

Bulletin of the Atomic Scientists, y Michal Onderco, Clara Egger | December 5, 2022 In recent weeks, several voices have called for adopting new legal instruments to protect civilian installations from military attacks during conflicts. The prime motivation stems from Russia’s shelling and occupation of the Zaporizhzhia nuclear power plant—Europe’s largest—as part of its ongoing war against Ukraine. This event, combined with Russia’s repeated transgression of international laws of armed conflicts, is said to reveal the weaknesses and inadequacy of existing legal protections. Such arguments were also aired during the 2020 NPT Review Conference held this summer in New York (after a two-year delay due to the global COVID-19 pandemic) as well as, more recently, in the columns of the Bulletin of the Atomic Scientists. Proponents of improved legal protections argue that a new convention is needed because of the ambiguity of existing international laws and the lack of enforcement mechanisms.

Although concerns about the protection of nuclear sites in war settings are wholly justified, the cure proposed might be worse than the disease. First, calls for a new regime reflect a partial reading of the legal and political mechanisms surrounding the protection of nuclear installations during a conflict. Second, because international law and political commitments already protect against attacks on nuclear installations, a new convention could add undesirable complexity with countries picking and choosing their commitments, which ultimately would weaken existing protections. Calls for new legal instruments would also send counterproductive signals in a context where the value of international norms is already challenged at the domestic and global levels.

There are no gaps. Legally, international humanitarian law norms already establish a detailed and unambiguous system of protection to avoid nuclear facilities becoming battlefields or being targeted by military attacks. The obligations of warring parties derive from two sources: They are linked to the general protection applicable to all types of civilian infrastructure in wartime but are reinforced and by specific protections applicable to nuclear power plants.

By default, nuclear facilities are considered civilian infrastructures even if doubts exist about their use, according to the Additional Protocol I to the Geneva Conventions (1977) as well as in contact areas (when military forces or combat operations are in the vicinity of power plants). This consideration is confirmed in the official commentary on the Additional Protocol I published by the International Committee of the Red Cross in 1987. Nuclear facilities are therefore already protected against attacks and reprisals.

………………………………… Overall, the legal protection against attacks on installations “containing dangerous forces” are seen as so fundamental that they are recognized as a part of the customary international humanitarian law, binding states regardless of whether they signed and ratified (or withdrew from) relevant international treaties. For example, the current military legal codes of Russia, Israel, and the United States (to name a few) all contain such provisions. From the legal perspective, nuclear facilities are on very safe grounds.

……………. The Additional Protocols to the Geneva Conventions explicitly provide that nuclear facilities must not be attacked even as part of broader military campaigns, if such an attack “may cause the release of dangerous forces and consequent severe losses among the civilian population” (cited in Article 56(1) of Additional Protocol I). This protection applies against retaliatory action (as cited in Art 56(4) of Additional Protocol I), and legal experts have even argued that such an act falls under the definition of a war crime (Art 85(3) of Additional Protocol I).

……………………………… Fragmentation is dangerous. Not only is a new convention in regard to attacks on nuclear power plants unnecessary; it would be politically and legally damaging. Adopting a new treaty would signal that current norms have become obsolete, making existing commitments irrelevant. ………………………………… more https://thebulletin.org/2022/12/why-a-new-convention-to-protect-nuclear-installations-in-war-is-a-bad-idea/