Protect Ukraine’s Zaporizhzhia Nuclear Plant Before It’s Too Late

Ukraine’s Zaporizhzhia nuclear power complex, which Russia captured early in the war, has been continually in the European and U.S. headlines since Russia turned it into a military base from which it shelled Ukraine across the Dnipro River. Kyiv knows that Ukrainian forces will not fire back at a nuclear plant and risk a radiological release. It has been acutely sensitive to such risks since the horrific 1986 Chernobyl accident.

Using a surrounding population as a human shield to protect a military force operating from a civilian reactor is specifically addressed in the 1977 Additional Protocol I to the 1949 Geneva Convention. Until the Russian invasion of Ukraine, no one had imagined it would be a provision that needed enforcement.

Article 56 of Additional Protocol I identifies nuclear power plants, along with dams, as “installations containing dangerous forces.” Such plants “shall not be made the object of attack” if “such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” Violation of this prohibition is a war crime.

Attacking any “civilian object,” whose destruction offers no “definite military advantage” is already forbidden by Article 52. The point of Article 56 is that even if there is such an advantage, an attack is forbidden if it may cause “severe losses” to civilians.

Concerning the “human shield” case, Article 56 adds that, “Parties to the conflict shall endeavor to avoid locating any military objectives in the vicinity of the works or installations,” in this case, nuclear power plants. This is not an absolute prohibition: “endeavor to” is an instruction whose violation is not a war crime. Nevertheless, it is an instruction and at the very least Russia should be called out—in the context of the Geneva Convention augmented by the 1977 Additional Protocol—for militarizing the Zaporizhzhia site.

Russia withdrew its ratification in 2019. Unfortunately, the United States has not ratified the Additional Protocol either.

We cannot, however, ignore a legal difficulty in applying the Additional Protocol. Ukraine has ratified it, but Russia withdrew its ratification in 2019. Putin complained that the risks “are increasingly significant” that the international commission set up to investigate war crimes against civilians, on which Russia was not represented, would abuse its power.

Unfortunately, the United States has not ratified the Additional Protocol either. It is not a direct participant in the Ukraine war but it plays an important role. Its position is significant when it comes to treating the Additional Protocol and its prohibition on attacking nuclear plants as established international law.

The main objection of most nonratifying states is the protocol’s broad definition of international armed conflict to include wars of national liberation. Iran and Pakistan signed but have not ratified. Other prominent holdouts are India and Turkey, which have neither signed nor ratified. Pakistan and India have, however, adopted a 1991 agreement not to attack each other’s nuclear installations.

Almost all other countries, including most of the United States’ NATO and Pacific allies—Australia, Japan, and South Korea—and even adversaries, such as China and North Korea, have ratified the protocol. It is reasonable to regard it as part of customary international humanitarian law. That Washington is not on board puts it in an awkward position in standing up for adhering to this law of war.

The United States regards the Additional Protocol I prohibition on attacking nuclear generating stations, which applies even if they are military objectives if the attack may release radioactivity and severe harm to civilians, as not reflecting “customary international law.” The manual explains, “The military perceives that in international conflicts, many situations may arise where it is important to attack and destroy parts of an electric power grid, such as a nuclear or hydroelectric generating station.” That objection makes it hard to complain about the Russians doing the same thing.

Parenthetically, the Additional Protocol states explicitly that protection for a nuclear generating plant ceases “if it provides electric power in regular, significant and direct support of military operations,” which means that the small reactors being developed by the Pentagon for military use, including battlefield use, would be legitimate targets no matter what the radiological consequences might be. For this reason and others, it would be a good idea to drop the U.S. military’s plans for powering bases, including forward bases, with small nuclear plants.

Then there is the issue of civilians. The Geneva Convention rules are based fundamentally on the distinction between civilian and military persons and facilities. In the context of attacks, where there is doubt regarding the civilian or military status of a facility or individual, Additional Protocol I grants a presumption in favor of civilian status.

Article 50 states, “In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.” Article 52 further notes, “In case of doubt whether an object which is normally dedicated to civilian purposes . . . is being used to make an effective contribution to military action, it shall be presumed not to be so used.”

But the Pentagon War Manual’s position differs: “Under customary international law, no legal presumption of civilian status exists for persons or objects,” including facilities. The arguments presented in support of this are: “Affording such a presumption could also encourage a defender to ignore its obligation to separate military objectives from civilians and civilian objects.

The United States would be in a much stronger position to complain about Russia’s violations, including at Zaporizhzhia, if it accepted the obligation to adhere to the Additional Protocol itself.

For example, unprivileged belligerents may seek to take advantage of a legal presumption of civilian status. Thus, there is a concern that affording such a presumption likely would increase the risk of harm to the civilian population and tend to undermine respect for the law of war.” Painting the U.S. objection to the presumption of civilian status as a measure intended to protect civilians is a bit of a stretch, to put it mildly.

In view of the near universal acceptance of the 1977 Additional Protocol I, the United States would be in a much stronger position to complain about Russia’s violations, including at the Zaporizhzhia nuclear plant, if it itself accepted the obligation to adhere to the Additional Protocol, or at least modified the Defense Department’s War Manual to conform with it.

More broadly, U.S. adherence is critical to making the prohibition against targeting and militarizing civilian nuclear power plants a firm part of international humanitarian law. Prohibitions against war crimes are notoriously difficult to enforce, but they have in instances been enforced. The deterrent effect depends on it.

It would, after all, be to the United States’ advantage, and increasingly so as the world develops, for there to be a strong worldwide commitment to international law as it pertains to the safety of civilian nuclear power plants in war zones.